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FOUNDATION 


CARRYING  OUT 
THE  CITY  PLAN 

THE  PRACTICAL  APPLICATION 
OF  AMERICAN  LAW  IN  THE 
EXECUTION    OF    CITY     PLANS 


By 

FLAVEL  SHURTLEFF 

OF  THE    BOSTON    BAR 


In  Collaboration  with 
FREDERICK  LAW  OLMSTED 

FELLOW   AMEnifAN    SOCiETV   Or    LANDSCAPE 
AilCHIfECTS 


NEW  YORK 

SURVEY  ASSOCIATES,  INC. 

MCMXIV 


INTRODUCTION 

THE  reason  for  preparing  this  book  is  the 
astonishing  variation  in  the  practical  effi- 
ciency of  methods  actually  employed  and 
prescribed  by  law  or  legal  custom  in  different  parts 
of  the  United  States  in  acquiring  land  for  public 
purposes,  in  distributing  the  cost  of  public  im- 
provements, and  in  other  proceedings  essential  to 
the  proper  shaping  of  our  growing  cities  to  the 
needs  of  their  inhabitants.  Mere  variation  in 
method  would  be  of  little  more  than  academic 
interest  in  itself,  but  variations  that  result  in 
obstructing  the  path  of  progress  in  one  community 
and  clearing  it  in  another  are  of  large  practical 
importance.  The  extent  and  significance  of  these 
practical  variations  have  impressed  themselves 
more  and  more  strongly  on  the  writer  in  the  course 
of  an  extended  practice  as  a  landscape  architect, 
especially  in  connection  with  the  design  and  exe- 
cution of  such  municipal  improvements  as  parks, 
playgrounds,  public  squares,  parkways,  streets, 
the  placing  of  public  buildings  and  the  improve- 
ment of  their  grounds.  Even  more  notable  than 
the  variation  in  method  and  in  relative  efficiency 
has  been  the  close  preoccupation  of  public  officials, 
especially  in  the  city  law  departments,  with  the 
constantly  recurring  problem  of  finding  the  way 


INTRODUCTION 

of  least  resistance  for  navigating  a  specific  im- 
provement through  the  maze  of  obstacles  imposed 
by  the  existing  local  legal  situation,  accompanied 
by  an  almost  fatalistic  acceptance  of  these  ob- 
stacles as  a  permanent  condition.  There  has  been 
evident  in  most  cities  a  very  limited  acquaintance 
with  conditions  and  methods  to  be  found  else- 
where, and  a  general  lack  of  strong  constructive 
effort  for  the  improvement  of  the  local  conditions 
and  methods  on  the  basis  of  general  experience. 
Of  late  years,  however,  there  has  been  a  growing 
tendency  to  break  away  from  this  indifference  and 
to  face  these  problems  in  a  larger  spirit. 

Feeling  the  importance  of  stimulating  and 
assisting  such  constructive  local  effort  by  calling 
attention  to  the  more  important  of  the  variations 
in  actual  use,  and  lacking  both  the  time  and  the 
legal  training  to  himself  prepare  a  proper  presenta- 
tion of  the  subject,  the  writer  of  this  preface 
urged  the  Russell  Sage  Foundation,  some  three 
years  ago,  to  provide  the  funds  for  making  a 
systematic  survey  of  the  field  and  for  publishing 
its  results.  The  response  was  cordial  and  effective 
and  enabled  Mr.  Flavel  Shurtleff  of  the  Boston 
Bar  to  devote  a  large  part  of  his  time  for  two 
years  to  the  undertaking. 

Mr.  Shurtleff  has  done  the  real  work  of  the 

book  from  beginning  to  end  and  is  responsible  for 

y    its  accuracy  from  a  legal  point  of  view.     The 

writer  of  this  preface  has  been  compelled  to  limit 

his  collaboration  to  a  general  guidance  in  the  gath- 

vi 


INTRODUCTION 

ering  and  selection  of  material  and  its  arrange- 
ment for  presentation,  and  to  a  somewhat  careful 
and  detailed  revision  of  the  manuscript  and  proofs 
for  the  purpose  of  making  the  impressions  con- 
veyed by  the  book  conform  in  a  common  sense 
way  with  the  observations  and  conclusions  to 
which  he  has  been  led  in  dealing  with  actual 
problems  of  municipal  improvement  in  many  dif- 
ferent cities. 

There  has  been  no  attempt  to  compile  a  com- 
prehensive treatise  on  city  planning;  and  some 
subjects  properly  within  the  title  of  this  volume 
have  not,  for  many  reasons,  been  examined  with  as 
great  a  detail  as  their  importance  may  seem  to 
justify.  This  is  particularly  true  of  the  subject 
of  building  regulations. 

Since  city  building  is  primarily  a  question  of 
the  acquisition  of  land  by  the  municipality,  or 
else  of  the  power  to  regulate  its  use  by  others, 
the  search  for  precedents  in  codes,  reports, 
and  legal  text  books  has  been  concerned  with 
three  well  defined  subjects:  the  acquisition  of 
land,  the  power  to  tax,  and  the  police  power. 
In  respect  to  these  there  has  been  no  attempt  to 
compile  a  complete  digest,  but  only  to  present  the 
more  significant  variations  revealed  by  a  fairly 
systematic  and  intelligent  search.  The  practice  of 
municipal  departments  has  been  much  more  diffi- 
cult to  discover.  The  examination  of  state  codes 
and  the  results  obtained  from  a  questionnaire  sent 
to  most  of  the  larger  cities  in  the  United  States 

vii 


INTRODUCTION 

made  it  possible  to  determine  upon  a  limited 
number  of  states  as  typical  of  the  rest,  and  by 
selecting  the  most  promising  cities  in  each  state, 
to  make  up  a  list  of  cities  for  study  on  the  ground. 
The  data  obtained  in  one  city  by  consultation 
with  city  officials  and  otherwise  often  led  to  the 
addition  of  a  new  city  to  the  list.  The  following 
cities  were  visited  for  a  few  days  each :  New  York, 
Buffalo,  Cleveland,  Indianapolis,  Chicago,  Mil- 
waukee, Minneapolis,  St.  Louis,  Kansas  City, 
Denver,  Los  Angeles,  -^San  Francisco,  Port- 
land (Oregon),  Seattle,  Houston,  Dallas,  New 
Orleans,  Baltimore,  Philadelphia,  and  Pittsburgh. 
An  opportunity  to  make  a  more  intensive  study 
in  one  city  presented  itself  in  connection  with 
an  investigation  conducted  by  the  city  planning 
committee  of  the  Boston  Chamber  of  Commerce 
into  the  methods  employed  in  extending  the 
street  systems  in  the  metropolitan  district  of  Bos- 
ton, and  the  information  thus  secured  has  been 
made  use  of  in  this  report. 

The  material  for  the  book  was  gathered  be- 
tween January,  19 lo,  and  January,  19 12,  a 
time  of  extraordinary  activity  in  city  planning 
legislation.  Some  of  the  text  became  obsolete 
before  the  book  was  completed  and  some  of  the 
conclusions  have  been  made  a  basis  of  legislation 
during  the  past  year  (191 3).  Thus,  Ohio  has 
written  into  its  constitution  the  power  of  excess 
condemnation   of  land*  and  the  right  to  assess 

*  See  Appendix  A,  III,  p.  280. 
viii 


INTRODUCTION 

the  cost  of  improvements  on  territory  especially 
benefited.*  Massachusetts,  New  York,  and  Wis- 
consin have  amended  their  constitutions  to  in- 
corporate the  principle  of  excess  condemnation. f 
The  Pennsylvania  law  of  1907,  allowing  excess 
condemnation,  has  been  tested  and  the  supreme 
court  has  declared  it  to  be  unconstitutional. t 
Plan  commissions  have  been  made  mandatory 
in  Massachusetts  and  have  been  authorized  in 
New  York,  New  Jersey,  Pennsylvania,  and  some 
cities  of  Connecticut. § 

This  activity  in  the  gradual  and  experimental 
reshaping  of  legal  mechanism  will  doubtless  con- 
tinue until  it  shall  have  been  forged  into  an  in- 
strument of  much  higher  average  efficiency  than 
at  present  for  the  accomplishment  of  the  social 
purposes  of  city  planning.  It  is  as  a  help  toward 
the  successful  working  out  of  this  process  that 
the  present  book  is  offered. 

Frederick  Law  Olmsted. 

Brookline,  Mass., 
30th  April,  1 9 14. 

*  Constitution  of  Ohio,  Article  XVI II,  Section   ii. 
t  See  Appendix  A,  Hi,  pp.  248,  278,  279.  t  See  Appendix 

A,  III,  pp.  272,  275.  §  See  Appendix,  pp.  283,  284,  290,  294. 


IX 


CHAPTER  I 
THE  PUBLIC  OWNERSHIP  OF  LAND 

THE  ownership  of  land  by  the  municipality 
is  essential  to  the  execution  of  many  parts 
of  a  city  plan.  Certain  acts  of  private 
owners  which  have  a  tendency  to  prevent  the 
realization  of  a  plan,  either  temporarily  or  for  all 
time,  may  be  enjoined  by  municipal  regulation. 
Certain  other  acts  in  the  furtherance  of  a  plan 
may  be  induced  by  persuasion  or  compelled  by 
administrative  pressure.  But  at  an  early  stage 
land  or  rights  in  land  must  be  acquired  for  the 
public,  and  a  municipality  will  be  called  upon  to 
consider,  first,  whether  it  has  a  right  to  acquire 
or  use  land  for  a  desired  purpose;  second,  the 
methods  of  acquiring  the  land;  and  third,  the 
equitable  distribution  of  the  cost  of  its  acquisi- 
tion. 

THE    RIGHT   OF  A   MUNICIPALITY    TO   ACQUIRE 
AND  HOLD  LAND 

It  is  well  to  emphasize  at  the  start  that  the  mu- 
nicipal ownership  of  land  is  subject  to  important 
limitations  in  the  United  States.  It  is  customary 
to  cite  German  examples  of  town  planning  and 
point  out  that  the  success  of  the  plan  is  due  to  the 
large  percentage  of  land  under  municipal  owner- 


CARRYING   OUT   THE    CITY    PLAN 

ship.  German  cities  are  encouraged  to  enter 
into  the  real  estate  field  for  the  avowed  purpose 
of  checking  speculation,  and  of  reducing  the 
over-crowding  of  lots,  by  releasing  from  private 
ownership  land  for  building  purposes.  However 
desirable  this  may  be  in  German  cities,  it  is  not 
permitted  in  any  municipality  in  the  United 
States. 

In  Germany  as  well  as  in  the  United  States  the 
purchase  money  at  the  disposal  of  any  municipal- 
ity is  but  the  return  from  the  taxation  of  the  citi- 
zens, and  the  income  of  all  can  be  spent  only  for 
a  use  that  can  be  shared  by  all.  German  cities 
have  reached  a  broad  conception  of  a  ''public 
use''  and  have  emphasized  in  this  conception 
f  the  rights  of  the  community.  The  Constitu- 
I  tion  of  the  United  States,  on  the  other  hand, 
was  written  when  the  individual  was  paramount 
in  philosophy  and  politics,  and  the  clause  which 
protects  the  individual  at  the  expense  of  the 
community  has  proved  an  effective  check  to  the 
democratic  tendencies  which  would  substitute  in 
importance  the  community  for  the  individual. 
Consequently  a  ''public  use"  in  the  United  States 
has  been  more  narrowly  interpreted  by  the  courts. 
But  new  public  needs  have  been  recognized  by 
the  legislatures  and  sanctioned  by  the  courts  since 
the  growth  of  great  centers  of  population  in  the 
United  States.  To  satisfy  recreational  needs  the 
appropriation  of  the  community's  money  has  been 
authorized  both  for  the  purchase  and  the  con- 


PUBLIC   OWNERSHIP   OF    LAND 

demnation  of  land  for  parks,  boulevards,  and 
playgrounds.  It  is  not  inconceivable  that  more 
radical  needs  will  be  recognized  by  legislatures  and 
courts  in  the  next  twenty  years. /^The  need  for 
the  protection  of  the  community  against  the 
selfishness  of  a  few  large  property  owners,  for  in- 
stance, may  bring  about  the  creation  of  a  munic- 
ipal board  representing  all  the  people  of  a 
community  as  a  factor  in  the  real  estate  markety^ 

A  municipality  in  the  United  States  may  be- 
come the  owner  of  land  by  gift,  dedication,  or 
devise,  and  may  use  such  land  for  any  purpose 
whatsoever  not  inconsistent  with  the  conditions  of 
the  gift,  dedication,  or  devise.  But  land  or  rights 
in  land  can  be  acquired  by  the  municipality  out  of 
public  revenue  only  for  a  specific  public  purpose, 
whether  the  acquisition  be  by  purchase  or  by  ap- 
propriation under  the  power  of  eminent  domain. 
If  the  city  has  acquired  a  complete  ownership  in 
land  either  by  purchase  or  appropriation,  it  may 
make  any  use  of  the  land  so  long  as  that  use  car- 
ries out  some  public  purpose;  except  in  the  jurisdic- 
tions where  it  has  been  held  that  a  city  has  only  a 
qualified  ownership  which  limits  its  right  of  use 
to  the  specific  purpose  for  which  the  land  was  ac- 
quired. 

METHODS  OF  ACQUIRING  LAND 
I.    ACQUISITION    BY    GIFT,    DEDICATION,  OR    DEVISE   "^ 

There  is  nothing  to  prevent  a  city  from  taking 
and  holding  land  for  other  than  a  public  purpose, 

3 


CARRYING   OUT   THE   CITY    PLAN 

provided  the  tax  payers*  money  is  not  spent  in 
the  acquisition  or  holding  of  the  land  for  the  desired 
purpose.  If  in  any  specific  case  it  were  desired 
to  grant  real  estate  to  a  city  for  a  purpose  not 
covered  in  the  city  charter,  the  legislature  would 
usually  be  found  willing  to  pass  enabling  legisla- 
tion. The  character  of  most  municipal  adminis- 
trations has  not  been  promising  enough  to  induce 
large  holders  of  land  to  create  trust  estates  which 
cities  shall  administer  for  the  benefit  either  of  all 
or  of  a  certain  class  of  their  citizens;  but  there  is 
nothing  in  legal  theory  which  would  prevent  the 
acceptance  on  the  part  of  a  city,  as  trustee,  of 
either  real  or  personal  property  which  the  donor 
desires  should  be  devoted  to  a  certain  use;  as,  for 
i  nstance,  to  the  providing  of  cheap  and  sanitary 
dwellings  for  its  citizens.  This  is  but  one  illustra- 
tion of  what  might  be  done  by  the  city  as  trustee, 
but  the  validity  of  any  such  trust  would  depend 
entirely  on  its  administration  without  expense  to 
the  city. 

2.    ACQUISITION    BY    PURCHASE  AND  CONDEMNATION 

The  acquisition  of  land  by  the  city  for  an 
unrestricted  purpose  either  by  gift,  dedication, 
or  devise  is  unusual,  but  its  acquisition  out  of 
public  revenue,  for  other  than  a  public  purpose 
either  by  purchase  or  by  condemnation,  is  pro- 
hibited in  all  cities.  In  the  latter  case  the  city 
may  take  a  fee,  which  is  complete  ownership  of 
land,  or  an  easement,  which  is  the  right  merely  to 

4 


PUBLIC   OWNERSHIP   OF    LAND 

use  the  land  for  a  specific  purpose  and  one  which 
will  be  interpreted  as  "public/'  These  restric- 
tions on  the  right  to  acquire  land  by  condemna- 
tion or  purchase  have  a  decided  influence  on  a 
city  plan. 

RESTRICTION  TO  A  SPECIFIC  USE 
If  land  is  acquired  for  specific  purposes  in  ac- 
cordance with  a  well  conceived  city  plan,  and  if 
the  terms  on  which  it  is  acquired  prevent  its  use 
in  any  manner  inconsistent  with  these  original 
purposes,  an  important  safeguard  is  thereby  set 
up  against  an  ill  considered  abandonment  of  the 
original'plan.  A  subsequent  administration  can 
not  then  sacrifice  the  deliberate  progress  made 
along  the  lines  of  the  original  plan  by  confiscating 
any  of  the  land  so  acquired  and  diverting  it  to  the 
service  of  some  new  project  which  may  for  the 
moment  seem  more  important  but  for  which  the 
city  is  unable  or  unwilling  to  buy  additional  land. 
Clearly  this  makes  for  a  conservative  stability  of 
purpose  which  is  wholly  in  accord  with  the  spirit 
of  city  planning. 

On  the  other  hand  the  normal  and  healthy  modi- 
fication of  the  city  plan  to  meet  new  conditions 
may  be  seriously  hampered  by  any  restriction  of 
municipal  land  holdings  to  a  specific  use.  Owing 
to  the  great  physical  changes  due  to  the  growth  of 
a  city  the  use  for  which  land  was  originally  ac- 
quired may  be  entirely  outgrown.  This  situation 
may  arise  when  land  originally  transferred  to  the 

5 


CARRYING   OUT   THE    CITY    PLAN 

city  for  park  or  school  purposes  becomes  abso- 
lutely unsuited  for  such  use  and  useful  for  another 
public  purpose  or  for  private  corporations  or 
individuals.  It  is  on  the  one  hand  undesirable 
to  devote  a  considerable  area  to  a  use  which  pre- 
vents the  best  all-round  development  of  the  city, 
— commercial,  industrial,  and  residential;  it  is 
equally  undesirable  to  allow  a  decrease  in  park  or 
school  lands  except  for  the  best  of  reasons. 

Cities  have  adopted  at  times  a  very  short- 
sighted real  estate  policy.  They  have  sold  their 
valuable  holdings  at  a  low  figure,  have  seen 
the  buyer  realize  a  tremendous  profit,  and  have 
been  obliged  to  purchase  sites  at  a  greatly  increased 
figure  when  by  retaining  their  holdings  they  would 
have  had  adequate  land  for  their  needs.  Build- 
ings have  been  planted  in  parks  in  the  supposed 
interest  of  economy,  and  by  filling  up  the  site 
the  building  has  been  robbed  of  distinction  and 
the  people  of  needed  open  space.  Such  offenses 
against  good  taste  and  true  economy,  which  are 
two  of  the  compounds  of  city  planning,  are  com- 
mitted even  now  when  the  need  of  parks  is  more 
fully  recognized  by  the  public  and  is  being 
championed  by  the  press.  This  mistaken  idea 
of  economy  probably  explains  the  location  of 
many  city  halls,  in  cities  large  and  small,  in  down- 
town squares  where  open  spaces  should  be  pre- 
served for  the  benefit  of  the  community  and  public 
buildings  arranged  to  face  upon  them.  Worces- 
ter, Massachusetts,  used  part  of  its  old  common 

6 


PUBLIC   OWNERSHIP   OF    LAND 

for  a  city  hall;  Philadelphia  appropriated  for  the 
same  purpose  one  of  the  public  squares  set  aside 
by  William  Perm;  the  city  hall  in  St.  Louis  oc- 
cupies six  acres  that  were  once  a  public  square; 
Charleston,  South  Carolina,  whose  city  hall  dates 
from  early  times,  took  for  its  site  one  of  four  small 
parks;  Pittsburgh  placed  on  land  originally  used 
as  a  public  square  two  market  buildings;  Delaware 
Park,  in  Buffalo,  has  been  encroached  upon  by 
an  art  gallery  and  historical  building  in  a  man- 
ner seriously  impairing  its  value  for  the  purposes 
which  controlled  its  original  acquirement;  an- 
other five-acre  park  in  Buffalo  has  been  used  in 
part  for  a  school  house  site. 

These  are  instances  where  good  city  building 
demands  the  protection  of  the  original  purpose 
through  stringent  limitations  on  municipal  au- 
thority. But  it  would  be  unfortunate  if  park 
lands  or  any  other  public  lands  which  have  be- 
come unsuited  for  their  original  purpose,  or 
which  even  though  still  suitable  would  block  a 
desirable  change  in  the  city  plan,  could  not  be 
diverted  to  a  new  use  without  too  great  expense 
or  delay.  Some  public  lands  are  easily  leased  for 
a  long  term  at  good  rentals  and  may  thus  bring  in 
an  income  which,  if  applied  to  the  purpose  for 
which  the  lands  were  originally  acquired,  would 
accomplish  more  than  the  direct  use  of  the  land 
itself.  The  return  from  former  school  house 
property  now  in  the  retail  section  of  Chicago 
swells  the  school  funds  by  ^637,569  every  year. 

7 


CARRYING   OUT  THE    CITY    PLAN 

The  appreciation  of  one  lot  at  the  corner  of  La 
Salle  and  Adams  Streets,  bought  for  ^8,750  for 
purposes  of  the  water  department  and  now  oc- 
cupied by  the  Rookery,  is  ^2,142,000. 

The  trouble  comes  when,  for  instance,  the 
plans  for  a  new  civic  center,  as  in  Cleveland,  pro- 
vide for  a  union  terminal  station  on  park  land, 
or  where  Chicago  wishes  to  locate  a  Field  Colum- 
bian Museum  in  Grant  Park.  Controversies 
aroused  by  cases  like  these  only  after  years  of 
delay  reach  the  supreme  court  for  a  determina- 
tion of  the  conflicting  rights  of  the  city  and  the 
grantors  or  their  heirs.  The  principles  as  evolved 
from  cases  that  have  been  decided  recognize 
clearly  a  distinction  founded  on  the  legal  charac- 
ter of  the  ownership  of  the  land  in  question. 

Case  i. — Where  the  city  has  acquired  merely  a 
right  in  the  land,  for  instance  a  right  to  use  the 
land  for  park  purposes,  and  the  ownership  has 
remained  in  the  grantor,  there  is  a  unanimity  of 
decision  that  the  land  must  be  used  for  park 
purposes  only,  and  that  any  other  use  operates 
to  leave  the  land  in  the  ownership  of  the  original 
grantor  free  from  the  incumbrance  of  the  city's 
use.  This  reversionary  right  may  be  purchased 
or,  if  necessary,  condemned,  since  the  power  of 
eminent  domain  is  paramount  to  any  kind  of 
ownership,  but  it  must  be  paid  for. 

Case  2. — Where  the  city  has  acquired  all  right, 
title,  and  interest  in  land  by  condemnation,  it  is 
the  law  in  New  York,  at  least,  that  the  legislature 

8 


PUBLIC   OWNERSHIP   OF    LAND 

may  change  the  use  and  provide  even  that  land 
formerly  used  as  a  park  may  be  conveyed  to  pri- 
vate individuals  or  corporations  for  a  private  use. 
In  the  case  of  Brooklyn  Park  Commission  vs. 
Armstrong,  45  N.  Y.  234,  the  city  of  Brooklyn 
had  acquired  a  fee  simple — absolute  ownership — 
by  condemnation  to  lands  which  were  to  be  hence- 
forth used  as  Prospect  Park.  Subsequently  when 
the  park  plans  were  more  fully  developed  it  was 
found  best  to  include  some  additional  lands  and 
exclude  some  of  those  originally  acquired.  The 
city  sold  one  lot  to  the  defendant,  who  refused  to 
take  title  on  the  ground  that  the  city  could  not 
convey  a  clear  title.  The  court  held  that  since 
the  title  was  received  in  trust  for  an  especial  public 
purpose  the  city  could  not  convey  without  the 
sanction  of  the  legislature,  but  that  it  was  within 
the  power  of  the  legislature  to  relieve  the  city  from 
the  trust  and  authorize  it  to  sell  and  convey: 

"  Doubtless  in  most  cases  where  land  is  condemned 
for  a  special  use  on  the  score  of  public  utility,  the  se- 
questration is  limited  to  that  particular  purpose.  But 
this  is  where  the  property  is  not  taken  but  the  use  only. 
There,  the  right  of  the  public  being  limited  to  the  use, 
when  the  use  ceases  the  right  ceases;  when  the  property 
is  taken,  though  a  particular  use  may  be  abandoned, 
the  right  to  the  property  remains.*'  "The  public  had 
the  right  of  the  land  in  making  payment,  and  as  soon 
as  the  owner  was  paid  he  was  disseised.  There  is  no 
reverter.''  "By  legislative  sanction,  it  may  be  sold, 
be  changed  in  its  character  from  realty  to  personalty, 

9 


CARRYING   OUT  THE    CITY    PLAN 

and  the  avails  be  devoted  to  general  or  special  pur- 
poses." 

Cases  in  other  jurisdictions  which  seem  to 
establish  a  different  rule,  namely,  that  the  legisla- 
ture can  not  divert  property  held  by  a  municipality 
in  trust  for  one  purpose  to  another  and  inconsistent 
purpose,  will  be  found  to  depend  on  the  language 
of  the  particular  statute  or  to  be  based  on  the  con- 
ception that  the  complete  ownership  was  never  in 
the  municipality. 

Case  3. — The  most  perplexing  situation  arises 
where  the  land  has  been  dedicated  in  fee  for  a 
particular  public  use,  as  for  park  purposes.  The 
state  of  the  law  in  this  situation  is  by  no  means 
clear.  Various  state  courts  have  come  to  differ- 
ent conclusions. 

The  Ohio  court,  in  the  case  of  Louisville  and 
Nashville  Railroad  vs.  Cincinnati,  76  Ohio  St. 
481,  held  that  when  a  common,  legal  title  of  which 
was  in  the  city  in  trust  for  its  inhabitants,  was  no 
longer  desired  or  the  purpose  for  which  it  was  ded- 
icated was  no  longer  obtainable,  it  would  revert 
to  the  dedicator.  But  the  Minnesota  court  in 
City  of  St.  Paul  vs.  Chicago,  Milwaukee  and  St. 
Paul  Railroad,  63  Minn.  330,  concluded  that  in 
attempting  to  divert  property  dedicated  in  fee 
simple  for  a  specific  purpose,  the  property  would 
not  revert  to  the  dedicator  but  that  the  act  of  the 
legislature  would  be  a  mere  nullity. 

The  most  surprising  decision  on  this  point  is 
that  of  South  Park  Commissioners  vs.  Ward,  248 


PUBLIC   OWNERSHIP   OF    LAND 

111.  299.  The  case  arose  out  of  an  attempt  by  the 
South  Park  commissioners  of  Chicago  to  locate  the 
Field  Columbian  Museum  in  Grant  Park. 

The  park  had  been  dedicated  forever  to  the  use 
of  the  public  by  a  platting  in  accordance  with 
which  there  had  been  sold  certain  abutting  lots, 
some  of  which  had  come  into  the  possession  of  the 
defendants  Ward  et  al.  The  right  of  the  owners  of 
the  abutting  lots  to  keep  the  park  free  from  build- 
ings was  by  a  special  statute  of  1861  made  en- 
forceable by  a  bill  in  equity.  Subsequent  to  1893 
an  area  many  times  the  size  of  the  original  park 
was  added  to  it  by  filling  into  Lake  Michigan. 
The  district  abutting  on  the  park  had  also  under- 
gone a  radical  change  from  its  original  residential 
character.  The  commissioners  decided  in  1909  to 
locate  the  museum  on  the  addition  to  the  park 
but  were  enjoined  by  Ward  et  al.  The  commis- 
sioners then  proceeded  under  an  act  of  1903  which 
authorized  them  to  condemn  the  rights  in  the  park 
possessed  by  any  lot  owners  under  the  original 
conveyance,  but  the  petitions  brought  to  condemn 
these  rights  were  dismissed  in  the  superior  court. 

In  sustaining  the  decision  the  supreme  court  of 
Illinois  held: 

"  If  the  legislature  had  no  power  to  change  the  uses  of 
Grant  Park  and  to  disregard  the  terms  of  the  dedica- 
tion by  authorizing  the  erection  and  maintenance  of 
buildings  in  the  park,  there  could  be  no  condemnation 
of  the  rights  of  the  defendant  that  the  park  should  be 
kept  free  from  buildings  whatever  the  nature  of  such 
rights  might  be." 

II 


CARRYING   OUT  THE    CITY    PLAN 

This  decision  is  a  denial  of  the  sovereign  power 
of  eminent  domain  as  is  pointed  out  in  the  strong 
dissenting  opinion.  If  the  legislature  could  ap- 
propriate by  eminent  domain  the  property  com- 
prised in  Grant  Park  before  it  was  dedicated,  it  is 
impossible  to  see  why  it  could  not  do  the  same 
thing  after  it  was  dedicated.  Whatever  the  rights 
of  the  original  dedicators  or  their  heirs  or  those 
holding  contract  rights  under  them,  those  rights 
can  be  taken  under  the  power  of  eminent  domain 
like  any  other  property  right  in  any  other  juris- 
diction but  Illinois. 

To  avoid  legal  complications  in  the  event  of  a 
change  in  use  it  is  not  enough  to  have  inserted  in 
the  original  dedication  "for  the  use  of  the  inhabi- 
tants as  a  park  or  for  any  other  public  use  which 
the  duly  constituted  authorities  shall  ordain.''  Even 
under  this  provision,  lands  held  in  complete  owner- 
ship by  the  city  might  become  so  dedicated  to  a 
specific  use  that  the  public,  and  perhaps  in  some 
jurisdictions  private  interests,  would  gain  rights 
which  later  must  be  condemned  if  the  land  were 
desired  for  a  different  public  use.  This  was  the 
case  in  State  vs.  Woodward,  23  Vt.  92.  A  certain 
town  had  full  ownership  in  a  piece  of  land  which 
could  be  used  for  any  public  purpose.  An  unin- 
terrupted use  by  the  public  as  a  public  common  for 
twenty  years  had  been  allowed  by  the  town,  and 
the  town  survey  described  the  land  as  a  common. 
The  court  held  that  these  facts  amounted  to  a 
dedication  of  the  land  to  the  public  use  as  a  com- 

12 


PUBLIC   OWNERSHIP   OF    LAND 

mon,  which  was  irrevocable.  Cities  must  there- 
fore be  as  guarded  in  preserving  their  control  of 
the  use  of  property  as  dedicators  must  be  in  the 
language  of  their  grant  if  they  wish  to  avoid 
restricting  it  to  a  special  use. 

Since  such  restrictions  may  either  be  valuable 
in  maintaining  a  consistent  city  plan  or  may 
seriously  impair  the  proper  flexibility  of  such  a 
plan,  no  general  rule  can  be  laid  down  as  to  their 
wisdom.  They  have  proved  an  important  pro- 
tection in  the  case  of  many  raids  on  park  property, 
but  it  would  seem  that  at  least  some  portion  of 
the  lands  acquired  by  a  city  ought  to  be  readily 
transferable  from  one  use  to  another  without  the 
delay  and  expense  imposed  by  such  a  safeguard. 

THE    ACQUISITION    OF    LAND    FOR   A    RESERVE 
ACCOUNT 

The  procedure  in  condemnation  and  the  prac- 
tice in  purchasing  prevent  a  city  from  taking  ad- 
vantage of  the  many  opportunities  which  it  has 
of  becoming  possessor  of  lands  at  an  advantage- 
ous price,  even  though  the  need  for  such  lands  may 
be  only  a  few  years  distant.  In  appropriating 
land  against  the  will  of  its  owner  the  purpose  for 
which  the  land  is  acquired  must  be  specified,  and 
that  purpose  is  closely  scrutinized  in  some  states 
by  a  jury  which  must  find  that  the  acquisition  is 
necessary  before  the  city  can  take  further  steps. 
In  purchasing,  cities  usually  come  into  the  market 
for  land,  particularly  for  the  sites  of  public  build- 

13 


CARRYING   OUT   THE    CITY    PLAN. 

ings,  when  prices  are  high,  a  procedure  which  no 
well  conducted  business  corporation  would  adopt. 
Bargains  in  land  are  taken  advantage  of  only 
rarely  and  only  indirectly.  It  is  possible  to  buy 
small  areas  for  one  purpose  and  later  use  them 
for  another;  but  there  is  little  purchasing  on  the 
part  of  cities  for  what  might  be  called  a  reserve 
account,  although  a  very  accurate  forecast  can 
usually  be  made  of  needs  for  lands  for  various 
public  purposes  based  on  the  direction  and  rate  of 
growth  of  the  population.  Considerable  areas, 
to  be  sure,  may  be  purchased  for  park  lands  and 
later,  by  authorization  from  the  legislature,  be 
diverted  in  part  to  other  uses,  thus  accomplishing 
the  purpose  by  indirection;  but  this  is  a  bad  pub- 
lic policy  since  it  makes  park  lands,  even  when 
they  become  inadequate  in  area,  subject  to  un- 
limited inroads  in  favor  of  any  and  every  other 
purpose. 

How  much  money  might  be  saved  to  the  city 
by  purchase  of  land  at  favorable  opportunities 
in  advance  of  actual  need  is  apparent  in  any  city 
from  the  increase  in  property  values  due  to  growth 
in  population.  The  congestion  commission  ap- 
pointed by  the  mayor  of  New  York  in  191 1  looked 
into  the  value  of  943  city  sites  and  found  that  the 
assessed  value  in  1908  in  537  cases  had  increased 
in  value  over  the  price  paid. 

Table  i  shows  the  percentage  of  increase  in  the 
values  of  these  sites. 


14 


PUBLIC   OWNERSHIP   OF    LAND 


TABLE  1. — INCREASE  IN  VALUE,  FROM  DATE  OF 
ACQUISITION  TO  1908,  OF  537  PUBLIC  SITES 
IN  NEW  YORK  CITY,  ACQUIRED  FROM  1812  TO 
1900* 


Per  cent  of  increase  in  value  of  site 

Sites  which 
increased 
in  value  as 
specified 

Less  than  25  per  cent 

25  and  less  than     101  per  cent 

101  and  less  than     201  per  cent 

201  and  less  than     301  per  cent 

301  and  less  than     401  per  cent 

401  and  less  than     501  per  cent 

501  and  less  than     601  per  cent 

601  and  less  than     701  per  cent 

701  and  less  than     801  per  cent 

801  and  less  than     901  per  cent 

901  and  less  than  1,001  per  cent 

1,001  and  less  than  1,501  per  cent 

1,501  and  less  than  2,001  per  cent 

2,001  or  more       .... 

9i 
154 
94 
42 

43 
17 
18 
10 
12 
10 
6 
1 1 
10 
19 

Total 

■537 

The  dates  of  acquisition  of  the  sites  considered 
in  the  table  varied  from  1812  to  1900.  Of  the  406 
pieces  of  property  which  showed  no  increase  over 
purchase  price,  230  had  been  acquired  since  1900. 

The  committee  pointed  out  that  the  city  could 
do  a  great  deal  of  purchasing  for  its  park  and 
playground  accounts,  even  in  comparatively  un- 
settled districts,  and  these  holdings  would  have 
influence  in  the  carrying  out  of  a  city  plan.  The 
same  is  true  of  the  purchase  of  land  for  school 

*  Report  of  New  York  City  Committee  on  Congestion  of  Popu- 
lation, p.  49  and  Appendix.     (Appendix  is  in  manuscript.) 

15 


CARRYING   OUT  THE    CITY    PLAN 

house  sites.  It  has  been  very  generally  agreed 
that  at  least  30  square  feet  should  be  provided 
for  every  pupil  registered  in  the  city  schools,  but 
it  is  safe  to  say  that  very  few  cities  have  bought 
land  to  this  amount.  In  1905,  Manhattan  bor- 
ough, New  York  City,  lacked  65  acres  for  school 
houses  alone  on  this  basis.  Almost  3000  acres 
were  needed  for  playgrounds  in  boroughs  out- 
side of  Manhattan,  while  Manhattan  itself  was 
hopelessly  behind  its  recreation  requirements.  It 
would  be  a  very  good  investment  for  New  York 
as  well  as  for  any  other  city  in  the  United  States  to 
buy  school  house  sites  at  43  cents  a  square  foot, 
the  price  for  which  they  can  be  bought  in  the 
borough  of  Richmond,  instead  of  at  $10.69  P^r 
square  foot,  which  they  cost  in  Manhattan.* 

But  it  is  impracticable  to  determine  far  in  ad- 
vance exactly  which  will  be  the  best  sites  for  schools 
and  which  for  other  purposes.  All  that  can  be 
safely  said  is  that  the  total  land  needed  for  mis- 
cellaneous local  uses  will  be  at  least  equal  to  a 
certain  minimum,  and  the  acquirement  of  that 
minimum  area  by  the  city  from  time  to  time  as 
favorable  opportunities  arise  is  a  wise  policy — pro- 
vided that  its  ownership  by  the  city  does  not 
withhold  it  for  a  long  time  from  economic  use 
pending  its  assignment  to  definite  public  service. 

Both  San  Francisco  and  San  Diego  have  saved 
considerable  money  by  the  inheritance  from  their 
Spanish   founders   of   so-called  "pueblo   lands,'' 

*  Op.  cit.,  p.  56. 
16 


PUBLIC   OWNERSHIP   OF    LAND 

which  they  have  in  part  used  as  parks  and  pub- 
He  building  sites,  in  part  have  sold,  and  in  part 
retain  as  an  unapportioned  reserve.  Chicago's  in- 
vestments in  sites  on  Dearborn,  State,  and  Clark 
Streets  are  returning  large  dividends  and  would 
yield  much  more  if  the  rentals  were  graduated  in 
accordance  with  increasing  ground  values.  Los 
Angeles  is  proposing  to  use  some  of  its  landed  in- 
heritance for  a  housing  experiment.  If  its  plan  is 
carried  out,  the  city  would  loan  the  land,  and  the 
construction  and  maintenance  of  the  houses  be 
privately  financed. 

Limitations  in  law  and  practice  on  the  power  of 
the  city  to  acquire  land  are  for  the  protection  of 
the  tax  payers  against  official  extravagance  and 
corruption.  But  finance  commissions  have  well 
checked  many  kinds  of  municipal  waste,  and  they 
can  as  effectively  prevent  a  misuse  of  the  purchas- 
ing and  condemning  power.  City  building  can 
undoubtedly  be  carried  out  more  economically 
through  the  purchase  of  a  reasonable  amount  of 
land  by  the  municipality  for  a  reserve  account. 

THE  ACQUISITION  OF   LAND   FOR   AN   ESTHETIC 
PURPOSE 

By  an  amendment  to  the  charter  of  the  city  of 
St.  Louis  in  1901,  the  right  was  given  the  municipal 
assembly  of  St.  Louis  by  ordinance  to  "prohibit 
the  erection  or  establishment  or  maintenance  of 
any  business  house  or  the  carrying  on  of  any  busi- 
ness vocation''  on  property  fronting  on  a  boule- 
3  17 


CARRYING   OUT   THE    CITY    PLAN 

vard  which  might  thereafter  be  opened.*  By  an 
act  of  the  legislature  of  Massachusetts  in  1898, 
buildings  "now  being  built  or  hereafter  to  be 
built,  rebuilt  or  altered"  on  land  abutting  on  a 
public  square  known  as  Copley  Square,  in  Boston, 
were  limited  to  the  height  of  90  feet.f  By  a  bill 
presented  in  the  national  house  of  representatives 
in  19 10,  the  commissioners  of  the  District  of  Co- 
lumbia were  authorized  to  designate  certain  streets 
or  avenues  within  the  District  as  Class  A  high- 
ways, and  on  such  highways  to  establish  certain 
special  restrictions  which  might  include  the  pro- 
hibition of  any  kind  of  business,  and  might  re- 
quire that  buildings  should  be  of  certain  height, 
certain  materials  of  construction,  and  of  such 
architectural  design  ''as  shall  secure  the  beautiful 
and  harmonious  appearance,  as  viewed  from  the 
public  streets,  of  all  structures  to  be  erected  or 
altered  on  land  to  which  said  restrictions  shall 

apply."! 

In  all  this  legislation  provision  was  made  for 
compensation  to  owners  for  the  right  in  land  thus 
taken,  and  herein  the  legislation  partakes  of  the 
character  of  ordinary  eminent  domain  statutes. 
But  the  interference  with  private  property  which 
this  legislation  authorized  is  at  least  an  unusual 
application  of  the  power  of  eminent  domain,  if 
not  an  extension  of  it  for  a  new  purpose. 

The  condemnation  of  private  property  for  parks, 
playgrounds,  and  boulevards  has  been  upheld  as 

*  See  Appendix,  p.  2!  i.  t  See  Appendix,  p.  218. 

t  See  Appendix,  p.  213. 
18 


PUBLIC   OWNERSHIP    OF    LAND 

justified  in  the  exercise  of  the  power  of  eminent 
domain,  but  the  decisions  are  for  the  most  part 
very  careful  to  point  out  that  esthetic  purposes 
were  merely  incidental,  allowing  the  inference  to 
be  drawn  that  the  taking  would  not  be  justified 
for  purely  esthetic  reasons.  Under  the  legisla- 
tion cited,  developments  of  private  property  may 
be  to  a  considerable  extent  controlled,  bill-boards 
may  be  abolished,  structures  may  be  limited  in 
height,  the  design  of  private  buildings  may  be 
modified,  solely  in  the  interest  of  the  public's 
sense  of  beauty. 

The  only  precedent  that  has  been  cited  to  sup- 
port the  validity  of  the  right  in  the  public  which  is 
asserted  in  this  legislation  is  the  Massachusetts 
case  of  Attorney  General  vs.  Williams,  174  Mass. 
476,  decided  in  1899.  This  case  arose  under  the 
Massachusetts  statute  of  1898  above  cited.  The 
defendants  were  owners  of  a  building  abutting  on 
Copley  Square,  Boston,  which  had  been  built  in 
violation  of  the  statute  prohibiting  the  construc- 
tion of  buildings  above  90  feet  in  height  on  this 
square.  The  action  was  brought  to  restrain  the 
maintenance  of  the  building  at  the  height  above 
the  statutory  line.  The  court  decided  that  the 
statute  was  constitutional  and  that  the  height  of 
the  building  should  be  made  to  conform  with  the 
statutory  provision.  The  language  of  the  court 
has  been  generally  interpreted  to  mean  that  rights 
in  private  land  and  buildings  in  the  nature  of  an 
easement  may  be  taken  by  eminent  domain  solely 

19 


CARRYING   OUT   THE   CITY    PLAN 

for  the  protection  of  the  public's  esthetic  sense.* 

"It  hardly  would  be  contended  that  the  same  rea- 
sons which  justify  the  taking  of  land  for  a  public  park 
do  not  also  justify  the  expenditure  of  money  to  make 
the  park  attractive  and  educational  to  those  whose 
tastes  are  being  formed  and  whose  love  of  beauty  is 
being  cultivated.  .  .  .  It  is  argued  by  the  de- 
fendants that  the  legislature  in  passing  this  statute  was 
seeking  to  preserve  the  architectural  symmetry  of  Cop- 
ley Square.  If  this  is  a  fact  and  if  the  statute  is  merely 
for  the  benefit  of  individual  property  owners,  the  pur- 
pose does  not  justify  the  taking  of  a  right  in  land  against 
the  will  of  the  owner.  But  if  the  legislature,  for  the 
benefit  of  the  public  was  seeking  to  promote  the  beauty 
and  attractiveness  of  a  public  park  in  the  capital  of  the 
Commonwealth  and  to  prevent  unreasonable  encroach- 
ments upon  the  light  and  air  which  it  had  previously 
received,  we  cannot  say  that  the  law-making  power 
might  not  determine  that  this  was  a  matter  of  such 
public  interest  as  to  call  for  an  expenditure  of  public 
money,  and  to  justify  the  taking  of  private  property. 
While  such  a  determination  should  not  be  made 
without  careful  consideration,  and  while  the  growing 
tendency  toward  an  enlargement  of  the  field  of  public 
expenditure  should  be  jealously  watched  and  carefully 
held  in  check,  a  determination  of  this  kind  once  made 
by  the  legislature  cannot  be  lightly  set  aside." 

The  court  says  merely  that  the  taking  of  private 
property  is  justified  to  promote  the  beauty  of  a 
park  and  prevent  encroachments  on  its  light  and 
air.   It  is  very  doubtful  if  any  broader  meaning 

*  See  text  of  decision,  Appendix,  p.  219. 
20 


PUBLIC   OWNERSHIP   OF    LAND 

should  be  given  to  its  language,  but,  if  it  is,  it 
is  believed  that  there  have  been  no  decisions  in 
other  jurisdictions  involving  the  same  principle. 
If  the  decision  is  generally  followed  it  will  be  no 
great  extension  of  this  principle  to  declare  con- 
stitutional the  legislation  previously  cited  which 
has  been  enacted  in  Missouri  and  proposed  in 
Washington.  It  may  be  as  clearly  for  the  benefit 
of  the  public  to  promote  the  beauty  of  a  street  or 
boulevard,  as  is  attempted  by  the  St.  Louis  and 
Washington  legislation,  as  to  promote  that  of  a 
park,  which  was  declared  to  be  one  of  the  aims 
of  the  Massachusetts  legislation  in  Attorney  Gen- 
eral vs.  Williams.  Education  may  so  increase 
esthetic  sentiment  as  to  compel  a  general  exten- 
sion of  the  power  of  municipalities  to  interfere  with 
the  rights  of  owners  for  purely  esthetic  reasons, 
just  as  education  compelled  a  judicial  sanction  of 
the  right  to  take  private  property  for  purposes 
of  public  recreation.  The  framing  of  an  esthetic 
test  which  will  adequately  protect  the  sense  of 
beauty  and  still  withstand  the  assaults  of  property 
owners,  will  puzzle  the  most  astute  law  makers. 
An  impartial  administration  of  the  newly  sanc- 
tioned power  will  also  be  difficult.  Neither  of 
these  difficulties,  however,  will  stand  in  the  way 
if  the  public  demands  a  universal  recognition  that 
esthetic  purposes  are  sufficient  to  justify  con- 
demnation. 


21 


CHAPTER  II 
THE  ACQUISITION  OF  LAND 

THE  great  obstacle  to  the  execution  of  any 
plan,  whether  for  the  orderly  extension  of  a 
city  or  for  the  reconstruction  of  its  older 
sections^  is  usually  the  expense  of  acquiring  the 
necessary  land.  This  difficulty  may  arise  because 
the  cost  of  the  land  is  excessive,  due  to  bad  methods 
of  acquisition,  or  because  the  cost  of  land  acquire- 
ment is  unfairly  distributed.  Either  or  both  of 
these  conditions  will  place  an  excessive  burden  on 
the  tax  payers.^  If  this  cost  must  be  borne  wholly 
or  mainly  by  the  tax  payers  at  large  while  a  few 
land  owners  absorb  a  wholly  disproportionate 
share  of  the  financial  benefit  from  the  improve- 
ments, there  will  result  a  strong  popular  sentiment 
against  such  improvements,  and  a  city  govern- 
ment that  is  at  all  responsive  will  refuse  to  under- 
take them,  even  though  the  city  as  a  whole  may 
suffer  for  lack  of  them  in  the  long  run. 

We  are  considering  here  only  well  conceived 
plans,  the  execution  of  which  will  be  a  real  ad- 
vantage to  the  community  as  a  whole  if  the  initial 
difficulties  of  financing  them  can  be  overcome. 
The  execution  of  any  plan  which  would  result  in 
a  net  damage  or  loss  to  a  community  can  not 

22 


THE    ACQUISITION    OF    LAND 

properly  be  called  an  improvement.  A  real  im- 
provement is  an  investment  on  which  the  return 
to  the  community  may  be  immediate  or  may  be 
deferred. 

The  financial  problem  in  acquiring  land  for 
any  contemplated  improvement  is,  therefore,  in 
the  first  place,  to  avoid  excessive  cost,  and  in  the 
second  place,  to  distribute  the  cost  in  an  equitable 
manner.  To  determine  whether  the  city  is  pay- 
ing an  excessive  price  for  land,  a  careful  considera- 
tion of  the  details  in  condemnation  procedure  is 
essential. 

PROCEDURE  IN  THE  CONDEMNATION  OF  LAND 
The  extraordinary  right  of  the  community  to 
take  private  land  even  against  the  will  of  the  owner 
necessitates  extraordinary  protection  to  the  in- 
dividual. This  protection  is  written  into  every 
state  constitution  excepting  that  of  North  Caro- 
lina, and  the  clause  is  interpreted,  not  as  a  declara- 
tion of  the  power  of  eminent  domain,  which  is 
inherent  in  sovereignty,  but  as  a  limitationon 
that  power.  /This  protection  is  further  guaranteed 
to  the  citizens  of  every  state  by  the  Fourteenth 
Amendment  of  the  Federal  Constitution.  Private 
property  can  be  taken  for  a  public  purpose  only 
after  "due  legal  process"  and  the  payment  of 
compensation,  but  the  guarantee  of  the  Federal 
Constitution  does  not  compel  uniformity  in  the 
provisions  of  all  states.  "Due  legal  process"  in 
condemnation  proceedings  is  satisfied  by  a  great 

23 


CARRYING   OUT   THE    CITY    PLAN 

variety  of  statutory  requirements,  the  only  essen- 
tial being  that  they  shall  contain  provisions  for  de- 
termining compensation,  for  giving  proper  notice, 
and  for  hearing  remonstrants.  On  the  methods 
of  determining  these  three  essentials  depend  the 
simplicity  and  economy  of  condemnation  pro- 
cedure. 

Most  states  give  the  further  right  to  the  land 
owner  at  some  stage  of  the  proceedings  of  hav- 
ing his  compensation  ascertained  by  a  common 
law  jury.  In  the  absence  of  specific  language  to 
that  effect  it  is  generally  held  that  the  owner  has 
no  right  to  a  jury  in  land  damage  cases,  since  at 
common  law  before  1787,  in  both  England  and 
America,  compensation  in  such  cases  was  ascer- 
tained by  other  tribunals  without  the  right  of 
appeal  to  a  jury  of  twelve.  Constitutions  giving 
in  general  terms  a  right  of  trial  by  jury  are  in- 
terpreted to  refer  only  to  such  cases  as  were  tried 
by  jury  at  the  common  law.  Many  states,  how- 
ever, have  granted  jury  trials  in  eminent  domain 
cases  by  statute,  while  other  states  have  construed 
clauses  of  their  constitutions  as  applicable  to 
eminent  domain  proceedings  and  have  allowed  a 
jury  trial. 

The  method  of  ascertaining  the  compensation  is 
the  first  consideration  of  a  municipality  endeavor- 
ing to  reduce  the  cost  of  taking  land  for  public 
purposes,  but  the  other  elements  of  "due  legal 
process"  are  responsible  for  much  of  the  delay  in 
condemnation  procedure  and  may  affect  consider- 

24 


THE    ACQUISITION    OF    LAND 

ably  the  amount  of  compensation.  Every  hearing 
requires  either  a  notice  to  property  owners  or  legal 
service  in  hand,  by  mail,  or  by  publication.  After 
every  hearing,  time  must  be  allowed  for  protest 
and  appeals  and  the  report  of  every  hearing  must 
be  published.  As  the  hearings  grow  more  nu- 
merous the  expense  of  advertising  becomes  a  large 
item,  and  every  addition  to  the  length  or  com- 
plexity of  the  procedure  involves  an  increase  of 
counsel  and  witness  fees  or  other  legal  expenses. 
Consequently,  the  elimination  of  any  one  of  the 
steps  in  condemnation  procedure  has  an  important 
bearing  on  the  question  of  reducing  the  size  of  the 
city's  investment.  We  may  best  consider  the 
provisions  for  notice  and  hearing  together. 

PROVISIONS  FOR  NOTICE  AND  HEARING 
After  authority  has  been  given  by  the  proper 
administrative  body,  the  steps  in  condemning  land 
for  public  use  are  notoriously  many  before  the 
city  can  take  possession  of  the  land.  Property 
owners  are  given  not  one  day  in  court  for  the  pro- 
tection of  their  rights,  but  many  days. 

I.     INITIAL    PROCEEDINGS 

Milwaukee.  After  the  city  council  passes  an 
ordinance  authorizing  the  taking  of  land  by  emi- 
nent domain,  there  must  be  first,  a  finding  by  a 
jury  of  12  that  the  taking  is  necessary  for  public 
use;  second,  a  hearing  before  the  board  of  public 
works  on  the  question  of  damages;   and   third. 


\ 


CARRYING   OUT  THE    CITY    PLAN 

there  may  be  an  appeal  from  this  hearing  to  a  jury 
which  reviews  the  entire  evidence.  The  follow- 
ing docket  entries  were  made  in  a  normal  street 
opening  case : 

Sept.  30,  1907,  first  resolution  of  common  council  re- 
ferred to  committee. 

Oct.  14,  1907,  first  resolution  adopted  by  common 
council. 

Oct.  15,  1907,  first  resolution  approved  by  mayor. 

Oct.  28,  1907,  second  resolution  adopted  and  ap- 
proved. 

Feb.  17,  1908,  third  resolution  adopted  and  approved. 

May  7,  1908,  proof  of  publication  and  service  of 
resolution  on  land  owners  returned  to  court. 

May  16,  1908,  list  of  owners  filed. 

May  23,  1908,  jury  sworn  and  premises  viewed. 

June  5,  1908,  jury  hears  evidence  and  returns  a 
verdict  that  the  opening  is  a  public  necessity. 

July  2,  1908,  papers  in  the  case  go  to  the  board  of 
public  works  for  award  of  damages  after  the  hear- 
ing of  evidence. 

Thus,  in  a  typical  Milwaukee  street  opening  al- 
most a  year  elapses  before  the  point  of  beginning 
to  ascertain  compensation  is  reached. 

Los  Angeles.*  The  city  council  passes  an 
ordinance  of  intent  to  take  private  property  by 
eminent  domain  and  sets  out  the  purpose  for  which 
the  land  is  to  be  taken.  The  ordinance  is  pub- 
lished  and   thirty   days   are   given   for   protest, 

*  For  streets,  see  Acts  of  California,  1909,  Chapter  684. 
For  parks,  see  Acts  of  California,  1909,  Chapter  697. 

26 


THE   ACQUISITION    OF    LAND 

either  against  the  taking  or  against  the  district 
which  has  been  marked  out  as  benefited  by  the 
improvement.  A  protest  against  the  improve- 
ment from  the  owners  of  a  majority  of  the  front- 
age of  property  proposed  to  be  taken  or  damaged 
puts  an  end  to  the  proceedings,  and  the  improve- 
ment can  not  be  initiated  again  for  at  least  six 
months  except  on  petition  by  the  owners  of  a 
majority  of  the  frontage.  Not  until  the  protests 
have  been  disposed  of  can  the  city  council  proceed 
to  pass  an  ordinance  authorizing  the  filing  in  court 
of  a  petition  for  condemnation.  Sixty  days  from 
the  time  of  the  passing  of  the  ordinance  are  al- 
lowed for  filing  the  petition,  and  the  details  re- 
quired in  the  petition  are  such  that  even  this  time 
usually  has  to  be  extended.  It  is  impossible  for 
the  city  to  acquire  land  in  less  than  a  year. 

Minneapolis.*  The  first  hearing  on  the  ques- 
tion of  damages  under  the  park  procedure  in  Min- 
neapolis is  held  before  five  appraisers  appointed 
by  the  park  commissioners.  The  second  hearing 
is  before  the  park  commission.  At  the  second 
hearing  the  park  commissioners  consider  objec- 
tions to  the  appraisers'  report  on  the  ground  either 
of  irregularity  in  the  proceedings  or  of  inadequacy 
of  the  award  of  damages.  The  third  hearing  is 
before  the  court  on  the  question  of  irregularity  of 
the  proceedings.  The  fourth  hearing  is  before 
three  appraisers  appointed  by  the  court  to  review 
the  evidence  and  bring  in  a  report  on  the  question 

*  Special  Laws  of  Minnesota,  1889,  Chapter  30. 
27 


CARRYING   OUT  THE   CITY    PLAN 

of  damages.  If  this  appraisal  is  unsatisfactory 
there  may  be  even  a  fifth  hearing  before  three  new 
appraisers,  but  in  the  practice  of  the  present  coun- 
sel for  the  board  of  park  commissioners,  which 
has  extended  over  several  years,  there  has  been 
only  one  instance  of  the  court's  granting  this  fifth 
hearing. 

St.  Louis.  In  St.  Louis  there  is  a  curious  anom- 
aly making  for  delay.  Ordinarily  the  findings  of 
the  eminent  domain  commission  are  taken  up  on 
appeal  to  a  justice  sitting  without  a  jury,  but  a 
corporation  is  allowed  to  appeal  to  a  common  law 
jury  on  the  question  of  damages  although  not  on 
the  question  of  benefit.  It  is  not  infrequent  for 
the  appeal  of  a  single  corporation  to  result  in  a 
jury's  overthrowing  the  finding  of  the  eminent 
domain  commission  in  respect  to  one  item,  in 
which  case  all  the  work  of  the  commission  goes 
for  nothing.  A  new  commission  must  be  ap- 
pointed and  the  evidence  must  be  entirely  re- 
viewed. A  corporation  has  the  same  right  in 
Kansas  City  but,  by  statute,*  it  must  exercise  that 
right  before  the  eminent  domain  commissioners 
report,  and  if  it  elects  to  have  its  damages  assessed 
by  a  jury  the  commissioners  have  no  jurisdiction 
over  that  part  of  the  case,  but  accept  the  finding  of 
the  jury  and  incorporate  it  in  their  own  report. 

Denver.  In  Denver,  where  in  other  details 
the  condemnation  procedure  is  satisfactory,  there 
is  much  time  wasted  over  the  formality  of  notice 

*  Charter  of  Kansas  City,  1908,  Article  13,  Section  12. 
28 


THE    ACQUISITION    OF    LAND 

and  hearing.  After  the  passing  of  the  ordinance 
and  the  formal  negotiation  by  the  mayor  for  the 
purchase,  a  petition  is  brought  in  the  district 
court.  Two  months,  at  least,  are  required  for 
service  on  residents,  and  a  month  more  for  pub- 
lication on  absent  defendants.  The  hearing  is 
then  begun  before  the  commissioners,  who  are 
allowed  thirty  days  to  report,  but  this  time  can 
be  extended.  Thirty  days  are  allowed  for  the  pub- 
lication of  the  report  and  thirty  days  more  for 
the  filing  of  petitions  by  parties  interested.  These 
petitions  are  usually  tried  out  by  a  common  law 
jury,  but  may  be  heard  by  a  jury  of  six.  It  is 
impossible  for  the  city  to  get  possession  of  land  in- 
side of  a  year  and,  where  many  property  owners 
are  involved,  much  more  time  is  required. 

Chicago.  In  Chicago,  where  land  for  streets 
is  commonly  dedicated  without  expense  to  the 
city,  the  only  considerable  taking  for  street  pur- 
poses in  the  past  fifteen  years  was  in  connection 
with  the  widening  of  Randolph  Street.  The 
docket  entries  show  that  the  ordinance  was  passed 
March  i6,  1903,  and  the  petition  filed  in  court  in 
June  of  the  same  year.  The  commission  was  ap- 
pointed in  July,  1903,  and  finished  its  work  in 
September,  but  the  time  allowed  for  petitions  and 
the  actual  trying  of  these  petitions  by  jury  so  de- 
layed the  proceedings  that  an  order  of  possession 
was  not  issued  to  the  city  until  June,  1906.* 

*  Original  papers  filed  in  the  case. 


29 


CARRYING   OUT   THE    CITY    PLAN 

Oregon.  In  contrast  with  the  cumbersome 
methods  illustrated  above,  the  state  code  of  Oregon 
shows  the  possibilities  of  a  more  direct  method  of 
condemnation  procedure.*  Without  preliminary 
notice  or  hearing  a  petition  is  filed  in  court  and 
issues  may  be  joined  within  fifteen  days  before  a 
common  law  jury,  and  even  in  cases  of  non-resident 
owners  the  interval  between  the  filing  of  petition 
and  the  trial  before  the  jury  is  not  over  two  months. 
The  city  may  come  into  possession  of  the  land 
within  two  months  after  filing  the  petition,  unless 
the  court  docket  is  crowded.  Delays  are  occa- 
sioned chiefly  because  of  insufficient  judges. 

2.  APPEALS  TO  HIGHER  COURT 

Even  after  the  award  of  damages  is  finally  deter- 
mined by  a  court  sitting  with  or  without  jury,  a 
hearing  on  appeal  is  allowed  on  questions  of  law 
in  condemnation  cases  as  in  any  other  civil  case. 
Such  appeals  are  relatively  infrequent,  because  the 
determination  by  the  legislature  that  a  proposed 
taking  is  for  a  public  use  is  held  not  appealable, 
and  because  a  finding  of  fact  by  the  lower  court 
on  the  question  of  damages  will  not  be  disturbed 
unless  there  is  evidence  of  gross  error  or  fraud. 
The  questions  that  go  up  to  the  supreme  court 
usually  are: 

I.  Is  the  statutory  provision  under  which  prop- 
erty is  condemned  constitutional? 

*  Lord's  Oregon  Laws,  Title  XLV,  Of  the  Condemnation  of  Land, 
Section  6859.     Acts  of  1909,  Chapter  171. 

30 


THE    ACQUISITION    OF    LAND 

2.  What  is  the  legal  meaning  of  the  language  of 
the  statute? 

3.  Have  the  municipal  authorities  strictly  com- 
plied with  the  details  of  the  procedure  as  outlined 
by  the  statute? 

4.  Is  the  rule  of  damages  as  announced  in  the 
lower  court  inequitable  either  to  the  city  or  to  the 
land  owner? 

The  additional  expense  of  appeals  to  a  court  of 
last  resort  can  not  be  avoided;  but  possession  of 
land  by  the  city  should  not  wait  on  the  outcome  of 
this  appeal,  particularly  where  the  only  question 
in  issue  is  the  amount  of  damages.  It  is  the  law 
of  most  jurisdictions  that  ownership  of  the  land 
passes  to  the  city  on  the  payment  of  the  fmal 
judgment  in  the  lower  court. 

THE  TRIBUNAL 

I.  A  SPECIAL  BOARD  SUBJECT  TO  REVIEW  BY  THE  COURT 
WITH  JURY 

A  common  law  jury  is  apt  to  lack  the  knowledge 
of  real  estate  values  and  the  experience  in  handling 
technical  evidence  which  are  important  in  the 
tribunal  which  is  to  ascertain  the  compensation 
in  land  damage  cases,  and  therefore  most  condem- 
nation codes  provide  a  special  tribunal.  Some 
of  the  codes  also  see  the  necessity  of  a  tribunal  as 
far  removed  as  possible  from  the  influence  of  the 
parties  to  the  suit  and  provide  for  its  non-partisan 
appointment,  usually  by  the  court  which  has  jur- 
isdiction over  the  proceedings.     There  is  a  wide 

31 


CARRYING   OUT  THE   CITY    PLAN 

difference  in  the  character  of  these  judicial  com- 
missions in  different  cities  and  even  in  successive 
commissions  in  the  same  city. 

Denver.  In  the  opinion  of  the  city  attorney's 
office,  Denver  gets  excellent  commissioners,  or 
appraisers  as  they  are  called.  The  procedure  is 
a  semi-judicial  one  from  the  start.  The  petition 
is  filed  in  the  district  court  and  three  appraisers 
are  appointed  by  the  presiding  justice,  who  en- 
deavors to  get  men  of  the  highest  qualifications 
for  this  work.  The  bill  which  is  submitted  by 
the  appraisers  for  their  services  is  usually  allowed 
without  much  question.  On  the  average,  only 
15  per  cent  of  the  findings  of  the  appraisers  are 
appealed  from.  A  commission  was  appointed  in 
191 1  to  ascertain  damages  in  connection  with  the 
extension  of  the  Denver  park  system.  Property 
for  this  purpose  was  taken  to  the  amount  of  $2,- 
523,463,  as  estimated  by  the  report  of  the  apprais- 
ers. Of  this  sum  J  1,8 14, 5  39  was  paid  for  land 
taken  for  the  site  of  the  civic  center.  Considering 
the  size  of  the  undertaking  there  were  very  few 
protesting  owners,  and  these  were  for  the  most  part 
owners  of  property  involved  in  the  taking  for  the 
civic  center.  Out  of  50  owners  only  18,  represent- 
ing $527,428,  protested  against  the  awards,  and 
one  of  these  alone  represented  $265,000.  The 
common  law  jury  which  heard  the  first  protest 
found  against  the  petitioners,  and  all  the  rest  of 
the  protesting  owners  withdrew  their  appeals.* 

*  Denver  Municipal  Facts,  Vol.  Ill,  No.  20,  p.  10. 
32 


THE    ACQUISITION    OF    LAND 

St.  Louis.  The  same  procedure  as  in  Denver 
is  followed  in  St.  Louis,  the  three  commissioners 
being  appointed  by  the  judge  of  the  circuit  court 
presiding  over  the  case.  A  majority  of  the  com- 
missioners has  full  power  to  act  and  make  a  report. 
Unlike  the  practice  in  Denver,  the  compensation  is 
fixed  at  ?3.oo  a  day.  It  is  not  to  be  expected  that 
excellent  men  will  be  attracted  by  such  low  pay, 
and  perhaps  for  this  reason  some  of  the  commis- 
sioners have  not  given  satisfaction.  It  is  reported 
to  be  not  an  unusual  thing  in  cases  involving  less 
than  ?i,ooo  for  the  commission  to  take  six  months 
in  reaching  a  decision  and  then  to  have  its  finding 
overturned  on  review.  On  the  other  hand,  there 
have  been  notably  good  commissioners  in  cases 
involving  heavy  damages.  The  commissioners 
who  sat  in  connection  with  the  condemnation  of 
the  site  of  the  municipal  courts  building  took  two 
days  to  reach  a  decision,  although  the  property  of 
400  defendants  was  taken  and  over  ?  1,000,000  in 
damages  was  paid.  Appeals  from  the  commis- 
sioners' findings  may  be  taken  to  a  common  law 
jury  only  by  a  corporation  land  owner — an  anom- 
aly in  procedure  which  we  have  already  noticed.* 

Philadelphia.  The  municipalities  of  Pennsyl- 
vania in  takings  for  street  purposes  replace  the 
commission,  which  may  be  regarded  as  somewhat 
expert  in  the  knowledge  of  real  estate  values,  by  a 
so-called  "road  jury''  of  three  appointed  by  the 
judge  of  the  court  where  the  petition  is  filed. 

*  See  page  28. 
4  33 


CARRYING   OUT  THE    CITY    PLAN 

Philadelphia,  with  a  population  of  2,000,000,  and 
the  hill  towns  of  a  few  hundred  inhabitants,  have 
the  same  procedure. 

The  awards  of  road  juries  are,  in  the  opinion  of 
the  city  solicitor's  office,  on  the  whole  satisfactory. 
Excessive  awards  to  land  owners  are  appealed 
from  by  the  city,  and  in  a  large  per  cent  of  these 
appeals  land  owners,  to  avoid  the  danger  of  liti- 
gation, remit  some  portion  of  the  award.  The  fol- 
lowing shows  the  total  amount  of  awards  and  total 
remitted  in  Philadelphia  in  1906,  1907,  and  1908. 

Year  Award  Remitted 

1906 $1,786,785  $147,821 

1907 2,273,867  118,973 

1908 2,719,691  208,173 

The  appeal  from  the  awards  of  road  juries  is 
heard  by  a  common  law  jury  in  the  superior  court 
and  results,  in  a  considerable  number  of  cases,  in  a 
substantial  increase  over  the  award.  The  report 
of  the  city  law  department  in  1906  shows  that 
there  were  76  cases  heard  by  a  road  jury  in  41 
of  which  appeals  were  taken.  In  this  same  year 
awards  in  130  cases  heard  in  the  superior  court 
were  increased  from  $132,054,  as  fixed  by  the 
road  jury,  to  $225,758.  In  nine  cases  the  amount 
of  the  award  remained  the  same  and  in  one  there 
was  a  decrease  of  $2,256.  The  reports  of  the  law 
department  of  1907,  1908,  and  1909  do  not  give 
the  whole  number  of  cases  appealed  from  the  road 
jury,  but  in  the  23  appealed  cases  heard  in  the 
superior  court  for   1907  there  were  increases  in 

34 


THE    ACQUISITION    OF    LAND     ^ 

awards  in  17  cases  from  ^49,169  to  fc  1,551 ;  in  the 
22  appealed  cases  heard  in  the  superior  court  for 
1908  there  were  increases  in  awards  in  20  cases 
from  $61,550  to  $85,877;  in  1909  out  of  19  cases 
there  were  increases  in  awards  in  14  cases  from 
$119,650  to  $i53»907- 

It  is  significant  that  in  a  considerable  number  of 
the  cases  appealed  from  a  road  jury  the  evidence 
is  heard  by  a  referee,  particularly  where  a  large 
sum  is  in  dispute,  and  the  common  law  jury  acts 
on  his  report.  Almost  half  the  appealed  cases  of 
1906  were  sent  to  a  referee. 

Portland,  Oregon.  In  taking  land  for  street 
purposes  Portland  does  not  use  the  state  code,  the 
advantages  of  which  were  described  on  page  30, 
but  follows  the  provisions  of  the  city  charter,* 
which  prescribe  a  procedure  much  like  that  in 
Philadelphia.  Its  three  "viewers"  correspond  to 
the  Philadelphia  "road  jury,"  except  that  they  are 
not  appointed  by  the  court  but  by  a  committee 
of  the  common  council  and  usually  for  political 
reasons.  The  result  is  that  a  body  of  professional 
viewers  has  developed  who  are  peculiarly  open  to 
the  charge  that  their  findings  may  be  influenced 
by  the  political  strength  of  the  parties  to  the  pro- 
ceeding. The  report  of  the  viewers  goes  to  the 
city  council  which  usually  adopts  it  as  the  easiest 
course  to  pursue.  At  any  time  within  twenty 
days  from  the  confirmation  of  the  report  of  the 
viewers  by  the  council,  an  appeal  may  be  made  to 

*  Charter  of  Portland,  Chapter  VI,  Section  348  ff. 
35 


CARRYING   OUT  THE   CITY    PLAN 

the  court  sitting  with  jury,  the  only  questions  open 
to  appeal  being  the  amount  of  damages  and,  where 
assessments  for  benefit  are  also  made,  the  amount 
of  the  assessment.  Since  any  number  of  persons 
may  join  in  the  appeal  the  proceeding  is  so  com- 
plicated that  the  jury  is  ordinarily  glad  to  confirm 
the  report  as  a  whole  and  avoid  the  rather  difficult 
task  of  revising  it.  Two  out  of  three  recent  cases 
had  that  result. 

There  are  two  types  of  commission  which  for 
convenience  will  be  placed  in  this  group,  though 
they  differ  essentially  from  the  Denver  and  St. 
Louis  commissions.  The  first  is  illustrated  by  the 
street  commissioners  in  Boston,  or  the  board  of 
public  works  in  Milwaukee;  the  second,  by  the 
Chicago  commission  specially  appointed  under  the 
local  improvement  act.  Like  judicially  appointed 
commissions,  those  of  Boston  and  Milwaukee  con- 
duct hearings,  but  unlike  judicially  appointed  com- 
missions they  sit  as  arbiters  in  a  case  in  which 
they,  as  representing  the  city  in  the  capacity  of  ad- 
ministrative bodies,  are  interested  parties. 

Boston.  In  proceedings  for  the  condemnation 
of  land  needed  for  streets,  and  for  school  houses 
and  other  public  buildings  in  Boston,  awards  of 
damages  are  made  by  the  street  commissioners 
after  public  hearing.  The  street  commissioners 
are  elected  for  three  years  and  receive  a  fixed  sal- 
ary. There  may  be  much  or  little  significance  in 
the  fact  that  appeals  are  frequent  from  the  awards 
of  this  elected  commission  which  is  apt  to  be  re- 

36 


THE    ACQUISITION    OF    LAND 

garded  as  closely  allied  with  the  city  administra- 
tion. Before  the  jury  the  city  undoubtedly  is 
handicapped  by  the  fact  that  the  awards  of  dam- 
ages have  been  made  by  a  department  of  the  city 
administration  sitting  as  a  tribunal  in  a  cause  in 
which  the  city  is  an  interested  party.  The  num- 
ber of  appeals  from  the  findings  of  the  Boston 
street  commission  compares  very  unfavorably 
with  those  from  the  St.  Louis  and  Denver  judi- 
cially appointed  commissions,  or  even  with  the 
Indianapolis  park  commission,  a  board  which, 
like  the  Boston  street  commission,  is  a  department 
of  the  city  administration.  The  different  result 
in  Indianapolis  may  be  due  altogether  to  the  strong 
demand  for  the  completion  of  the  park  system  and 
to  the  conviction  in  the  minds  of  land  owners  that 
parks  create  land  values;  but  contributing  factors 
to  this  result  are  doubtless,  first,  the  strictly  non- 
partisan character  of  the  IndianapoHs  commission, 
which  serves  without  compensation,  and  its  repu- 
tation for  fair  dealing;  second,  the  elimination  of 
the  jury  in  cases  appealed  from  the  park  com- 
mission; and  third,  the  assessment  of  the  cost  of 
land  taking  on  the  property  specially  benefited, 
which  compels  the  interest  of  the  land  owner 
"specially  benefited'*  in  every  verdict  for  land 
damages  and  makes  appeals  to  increase  verdicts 
extremely  unpopular. 

Data  in  35  proceedings  for  street  openings, 
widenings,  and  relocations  in  Boston,  taken  at 
random  from  the  records  of  the  last  fifteen  years, 

37 


CARRYING   OUT  THE    CITY    PLAN 

show  that  in  31  cases  the  awards  of  the  street 
commissioners  were  not  accepted  by  the  owners. 
In  28  of  these  cases  there  were  1,065  parties  to  the 
proceedings,  of  whom  462  refused  to  accept  awards. 
Approximately  175  of  these  claims  for  additional 
compensation  were  settled  by  the  street  com- 
missioners, 287  were  entered  in  court  and  either 
tried  by  jury  or  settled  by  the  law  department. 
Thus  26  per  cent  of  all  owners  interested  in  the 
proceedings  appealed  to  a  common  law  jury  and 
a  considerable  portion  of  these  appeals  were  ac- 
tually tried.  Complete  figures  were  obtained  from 
the  records  of  the  street  commissioners  in  12  pro- 
ceedings and  are  given  in  the  following  table : 


TABLE  2. — DAMAGES  AWARDED,  PARTIES  IN- 
VOLVED, CLAIMS  FOR  INCREASE,  AND  CLAIMS 
COMPROMISED  OR  SETTLED,  IN  12  PROCEEDINGS 
FOR  STREET  IMPROVEMENTS.      BOSTON,  1895  TO  1913 


Location  of 

Amount  of 

Par- 

Claims 

Claims 
settled  by 
street  com- 

improvement 

damages 
awarded 

ties  in- 
volved 

for  in- 
crease 

missioners 

Huntington  Ave.  . 

^230,353 

58 

34 

26 

Audubon  Rd. 

26,472 

I 

Columbus  Ave.     . 

926,986 

177 

122 

92 

Boylston  St.  . 

10,039 

8 

7 

Brighton  Ave. 

103,165 

26 

26 

23 

South  Huntington  Ave. 

56,195 

II 

I 

Dorchester  St.      . 

307.193 

52 

5 

5 

Walter  St.      .       .       . 

6,000 

33 

14 

6 

Brookline  Ave.     . 

26,000 

20 

9 

2 

Tremont  St.  . 

12,000 

25 

8 

1 

Cambridge  St. 

30,000 

25 

12 

. . 

Queensbury  St.     . 

1 12,904 

7 

6 

•• 

Total.        .       .       . 

$1,847,307 

443 

245 

«55 

38 


THE    ACQUISITION    OF    LAND 

Milwaukee.  Although  in  Milwaukee  the 
board  of  public  works  is  the  tribunal  before  which 
evidence  is  presented  on  the  question  of  damages 
on  account  of  the  taking  of  property  for  public 
purposes,  a  finding  that  a  taking  proposed  is 
necessary  and  that  the  purpose  is  a  public  one 
must  be  made  by  a  jury  of  twelve  men  before  the 
case  gets  to  the  board  of  public  works.  From 
the  awards  of  the  board  of  public  works  appeal 
is  allowed  to  a  common  law  jury,  but  in  the  last 
eight  years  every  appeal  has  been  settled  before 
the  case  reached  trial.  It  may  be  said  in  this  con- 
nection that  there  have  been  no  very  extensive 
takings  for  either  street  or  park  purposes. 

Chicago.  The  second  type  of  commission  is 
provided  for  in  the  procedure  for  street  improve- 
ments in  Chicago.  Like  the  Denver  and  St. 
Louis  commissions,  it  is  judicially  appointed  but 
is  more  in  the  nature  of  a  board  of  advisory  ex- 
perts to  the  jury,  since  its  report  is  made  without 
a  hearing  and  on  the  basis  of  its  own  appraisal 
of  valuations.  The  court  frequently  follows  the 
suggestion  of  the  city  attorney  in  making  the 
appointments  to  this  commission.  The  report 
of  the  commission  is  filed  in  court,  summonses  are 
immediately  issued  to  all  persons  whose  land  is 
damaged  or  taken,  and  the  trial  proceeds  before  a 
common  law  jury.  There  have  been  so  few  cases 
of  takings  for  street  openings,  widenings,  and  ex- 
tensions in  Chicago  that  the  data  are  insufficient 
to  form  the  basis  for  an  opinion  as  to  the  merit  of 

39 


CARRYING   OUT  THE    CITY    PLAN 

the  Chicago  method  of  ascertaining  compensation. 
The  only  proceeding  that  has  involved  consider- 
able land  taking  within  the  past  twenty  years  was 
the  widening  of  Randolph  Street,  in  which  case 
the  work  of  the  commission  was  on  the  whole 
well  done,  if  judged  by  the  result  of  the  review  by 
the  court.  Many  owners  were  concerned  in  that 
proceeding,  but  the  finding  of  the  commissioners 
as  to  compensation  for  land  taken  or  damaged 
was  increased  only  from  ^3 14,000  to  $367,000,  and 
the  finding  of  the  commissioners  that  there  "was 
no  public  benefit"  and  that,  therefore,  the  total 
expense  of  the  improvement  should  be  assessed 
on  private  owners  was  not  altered  on  appeal. 
For  their  services  in  this  case,  the  commissioners 
received  $1,000  each. 

2.    A  COURT  WITH  JURY  HAVING  ORIGINAL  JURISDICTION 

Although  an  appointed  commission  is  more 
likely  to  consider  intelligently  the  evidence  and 
to  come  to  a  fairer  conclusion  than  if  the  pro- 
ceedings are  brought  directly  before  a  jury, 
this  advantage  may  be  more  than  offset  and  the 
preliminary  hearing  be  a  waste  of  time  if  the  com- 
mission's findings  are  overturned  by  an  inexperi- 
enced jury  of  twelve  men.  It  is  therefore  not 
surprising  to  find  in  several  jurisdictions  where  the 
right  to  a  jury  is  granted  in  eminent  domain  cases 
that  the  expense  of  a  first  hearing  before  a  com- 
mission is  entirely  eliminated.  This  is  so  in  the 
state  codes  of  Louisiana,  Ohio,  Washington,  and 

40 


THE    ACQUISITION    OF    LAND 

California.  In  the  city  of  Chicago  for  some 
public  purposes,  and  in  Portland,  Oregon,  for  all 
public  purposes  except  street  openings,  widenings, 
and  extensions,  the  same  procedure  is  followed. 

Cleveland.  In  Ohio,  the  procedure  in  ap- 
propriating land  for  all  public  purposes  is  regu- 
lated by  the  state  law.*  When  an  ordinance 
authorizing  the  appropriation  of  land  is  passed  by 
a  two-thirds  vote  of  the  common  council  of  any 
city,  the  city  solicitor  makes  application  to  the 
court  of  common  pleas,  to  a  judge  in  vacation,  to 
the  probate  court,  or  to  the  insolvency  court,  for 
the  appointment  of  a  jury  to  award  compensation, 
giving  five  days'  notice  of  such  application  to  the 
owners  of  property  affected  by  the  ordinance. 
The  judge  applied  to  sets  a  time  for  the  hearing 
of  evidence  by  the  jury  and  the  trial  proceeds  as 
in  other  civil  actions.  Appeal  lies  from  the  find- 
ing of  the  jury,  but  the  right  to  take  and  use  the 
property  condemned  is  not  affected  by  the  appeal. 
Upon  payment  of  the  judgment  or  upon  depositing 
the  money  in  court,  a  fee  simple  vests  in  the  city 
unless  a  lesser  estate  is  asked  for  in  the  ordinance 
of  appropriation. 

In  Cleveland,  when  the  state  insolvency  court 
was  legislated  out  of  existence  by  operation  of  the 
federal  bankruptcy  law,  that  court  took  over 
jurisdiction  in  juvenile  and  condemnation  cases. 
The  docket  of  the  court  is  not  overcrowded  and  a 
speedy  trial  is  assured  in  every  case.     So  rarely 

*  General  Code  of  Ohio,  Section  3677  ff. 
41 


CARRYING   OUT   THE    CITY    PLAN 

have  the  offers  made  by  the  city  been  exceeded 
by  the  jury's  findings  that  owners  have  learned 
the  economy  of  accepting  the  city's  offer  in  the 
first  instance  and  avoiding  the  delay  and  ex- 
pense incident  to  litigation.  The  result  is  that 
less  than  one-tenth  of  the  land  needed  for  public 
purposes  is  acquired  by  condemnation  procedure. 
Chicago.  Chicago  gets  practically  all  of  its 
sites  for  school  houses  by  condemnation.  The 
offer  of  the  school  board  to  purchase  land  desired 
is  hardly  more  than  formal,  and  on  its  rejection 
the  petition  for  condemning  the  land  is  brought 
immediately  in  court  and  evidence  of  the  value  of 
the  site  is  presented  directly  to  the  jury.  This 
method  has  been  in  use  for  some  years  and  coun- 
sel for  the  board,  who  has  served  during  the  his- 
tory of  this  method  of  procedure,  is  convinced  that 
the  city  is  in  substantially  as  advantageous  a 
position  as  a  private  buyer.  During  the  past 
five  years  (1907-19 12),  with  an  average  of  at 
least  20  cases  a  year,  the  jury  has,  with  practi- 
cally no  exception,  accepted  the  valuation  of  the 
site  as  fixed  by  the  law  department  of  the  school 
board.  Settlements  with  property  owners  have 
consequently  been  much  more  common.  Ten 
years  ago  90  per  cent  of  the  cases  involving  con- 
demnation for  school  purposes  in  Chicago  were 
tried  through  to  a  verdict.  Today  more  than  90 
per  cent  are  settled  and  subsequent  proceedings 
are  merely  formal,  to  perfect  the  title. 


42 


THE    ACQUISITION    OF    LAND 

San  Francisco.*  In  San  Francisco,  too,  the 
procedure  is  begun  by  filing  a  complaint  and  is- 
suing summonses  thereon  in  the  superior  court. 
If  the  owners  affected  by  the  process  do  not  de- 
mand a  trial  by  jury  it  is  waived  and  three  ap- 
praisers are  appointed  by  the  court  to  ascertain 
the  compensation.^.  In  practice,  however,  more 
than  80  per  cent  of  the  land  needed  in  San  Fran- 
cisco for  public  purposes  is  acquired  directly  by 
deed  from  the  owners  without  resort  to  condem- 
nation procedure. 

3.   A  COURT  WITHOUT  JURY  HAVING  ORIGINAL  OR  APPEL- 
LATE jurisdiction 

New  YoRK.f  When  the  board  of  estimate 
and  apportionment  of  New  York  City  authorizes 
the  taking  of  land  for  street  or  park  purposes,  ap- 
plication is  made  to  the  supreme  court  for  the 
appointment  of  three  commissioners  of  estimate 
and  assessment,  to  determine  the  compensation 
to  owners  and  to  assess  as  damages  the  cost  of  the 
proposed  improvement,  or  such  a  proportion 
thereof  as  the  board  of  estimate  and  apportion- 
ment directs,  on  lands  deemed  specially  benefited. 
After  hearing  evidence  an  abstract  of  the  report 
of  the  three  commissioners  or  of  a  majority  of 
them  is  filed  in  court  at  least  thirty  days  before 
being  presented  formally  to  the  court  for  confirma- 
tion, in  order  that  petitions  in  writing  against  the 

*  California  Code  of  Civil  Procedure,  paragraph  1243  ff. 

Acts  of  California,  1909,  Chapter  684. 
t  Greater  New  York  Charter  as  amended  in  1901,  Section  970  ff, 

43 


c- 


^ 


CARRYING   OUT  THE   CITY    PLAN 

confirmation  of  the  report  may  be  filed.  The 
court  gives  a  pubHc  hearing  to  remonstrants  who 
have  filed  their  written  objections,  and  confirms 
or  modifies  the  report,  or  in  some  cases  sends  it 
back  to  a  new  commission.  The  commissioners 
are  directed  by  the  statute  to  complete  their 
work  within  six  months  unless  granted  an  ex- 
tension by  the  court  for  good  cause.  Their  com- 
pensation is  J 10  a  day. 

This  procedure  was  long  regarded  as  unsatis- 
factory.. In  191 1  it  was  characterized  by  the 
New  York  press  as  "inordinately  expensive," 
because  of  the  financial  interest  of  the  commis- 
sioners in  protracting  the  proceedings;  ''generally 
inefficient,"  because  of  the  many  incompetent 
commissioners  selected  for  political  reasons;  and 
open  to  "flagrant  abuse,"  because  the  commis- 
sioners thus  selected  were  likely  to  fa vor^  prop- 
erty owners  who  had  political  influence  By  the 
adoption  of  a  constitutional  amendment  at  the 
general  election  November  4,  191 3,  the  legislature 
is  permitted  to  pass  an  act  which  will  give  to  a 
justice  of  the  supreme  court  the  power  to  dispose 
of  all  matters  concerning  condemnation  formerly 
in  the  hands  of  the  commissioners  of  estimate 
and  assessment.*  In  the  opinion  of  the  corpora- 
tion counsel,  Archibald  R.  Watson,  "A  justice 
of  the  supreme  court  with  undivided  responsi- 
bility, with  no  interest  to  prolong  the  proceedings, 

*  Amendment  to  Constitution  of  New  York,  Section  7,  Article  i. 
For  text  see  Appendix,  p.  248. 

44 


THE   ACQUISITION    OF    LAND 

not  susceptible  to  influence  and  generally  of  high 
grade  character  and  capacity,  should  be  able  to 
dispose  of  condemnation  matters  with  results  far 
preferable  than  by  means  of  commissioners." 

Minneapolis.  We  have  already  described 
the  procedure  in  appropriating  lands  for  park 
purposes  in  Minneapolis  up  to  the  time  of  the 
confirmation  of  the  awards  by  the  district  court.* 
The  results  are  on  the  whole  quite  satisfactory. 
The  appraisers  are  usually  competent  men  and, 
although  appeals  are  taken  from  their  awards  as 
confirmed  by  the  board  of  park  commissioners  to 
the  district  court  sitting  without  jury,  the  per- 
centage of  such  appeals  is  not  large,  not  more 
than  15  per  cent  in  any  proceeding,  and  the  in- 
crease in  awards  on  appeal  is  often  merely  nom-, 
inal  and  rarely  more  than  20  per  cent.  There 
seems,  however,  little  justification  for  two  pre- 
liminary hearings,  one  before  the  appraisers  and 
one  before  the  park  commissioners,  on  the  question 
of  land  awards.  The  appraisal  could  as  well  be 
done  by  the  park  commissioners  through  the 
agency  of  a  competent  clerical  force,  as  in  Indian- 
apolis, and  the  expense  of  appraisals  and  reap- 
praisals would  be  avoided. 

Kansas  City.  In  Kansas  City,  Missouri,  the 
petition  for  taking  land  for  street  purposes  is 
brought  in  the  municipal  court  which  sits  with  a 
jury  of  six  appointed  by  the  presiding  justice. t 

*  See  p.  27. 

t  Charter  of  Kansas  City,  190c,  Article  6,  Section  i  ff. 

45 


CARRYING   OUT   THE    CITY    PLAN 

The  verdict  of  the  jury  is  confirmed  by  the  com- 
mon council  of  the  city  and  appeals  are  allowed 
to  the  circuit  court.  In  practice  not  more  than 
25  per  cent  of  such  actions  are  appealed  from  the 
municipal  court.  In  the  newer  procedure  for 
the  taking  of  land  for  park  purposes  a  saving  of 
both  time  and  expense,  by  eliminating  the  pre- 
liminary trial  in  the  municipal  court,  is  brought 
about  by  allowing  the  petition  to  be  filed  directly 
in  the  circuit  court.*  As  in  St.  Louis,  a  corpora- 
tion is  allowed  a  hearing  on  the  question  of  dam- 
ages for  land  taken  before  a  common  law  jury,  but 
in  Kansas  City  corporations  do  not  demand  com- 
mon law  juries.  When  the  procedure  was  new,  a 
corporation  tried  the  experiment  and  the  result 
was  so  disastrous  that  it  is  said  never  to  have  been 
attempted  since.  Presiding  justices  both  in  the 
municipal  and  circuit  courts  take  care  to  appoint 
competent  men.  That  satisfactory  jurors  can  be 
obtained  for  ^2.50  a  day,  which  is  the  compen- 
sation allowed,  is  ample  evidence  that  jury  ser- 
vice in  these  cases  is  regarded  as  a  civic  duty  and 
not  as  a  desirable  *' job.'* 

Indianapolis.  In  Indianapolis  the  board  of 
public  works  in  takings  for  street  purposes,  and 
the  board  of  park  commissioners  in  takings  for 
park  purposes,  have  the  same  duties  which  in 
Kansas  City  are  performed  by  a  jury  of  six  men. 
All  objections  to  the  taking,  awards  for  damages, 
and  the  size  of  the  specially  benefited  area  as 

*  Charter  of  Kansas  City,  1909,  Article  13,  Section  8  ff. 

46 


THE    ACQUISITION    OF    LAND 

marked  out  by  the  commissioners,  are  disposed  of 
in  one  hearing.*  From  the  findings  of  the  com- 
missioners appeal  lies  directly  to  the  circuit  or 
superior  court  sitting  without  jury,  and  the 
amount  of  the  judgment  as  found  on  appeal  is 
final.  The  businesslike  practice  which  has  been 
adopted  by  the  park  commission  under  the  act  of 
1909,  appeals  to  the  sense  of  fairness  of  the  prop- 
erty owner  and  has  proved  most  helpful  in  arriv- 
ing at  awards.  In  every  taking  the  park  board 
has  the  assistance  of  real  estate  experts  as  an  ad- 
visory committee,  and  is  kept  in  close  touch  with 
valuations  by  a  complete  card  catalogue  system 
which  registers  the  actual  consideration  in  trans- 
fers of  property. 

Although  the  act  is  only  three  years  old,  there 
has  been  at  least  one  considerable  taking  in  each 
park  district.  In  the  North  Park  there  have  been 
two,  one  involving  an  expense  of  $154,420  and 
the  other  ^i  31,662.  In  all  the  takings  for  park 
purposes  under  the  new  act  involving  over 
$600,000  worth  of  property  and  several  thousand 
owners,  there  have  been  only  four  appeals  from 
the  findings  of  the  board,  two  of  which  have 
been  decided  by  the  superior  court.  In  one  an 
award  of  $10,000  was  increased  to  $17,000  and  in 
the  other  an  award  of  $6,925  was  increased  to 
$9,800.  In  one  proceeding  alone  there  were  1,600 
owners  involved  and  only  50  were  present  at  the 
hearing  given  remonstrants. f 

*  Acts  of  Indiana,  191 1,  Chapter  231,  Sections  17  and  19. 
t  Records  of  Indianapolis  Park  Commissioners. 

47 


/        CARRYING   OUT  THE   CITY    PLAN 

O  CONCLUSIONS 

The  New  York  constitutional  amendment  pro- 
vides the  simplest  method  of  ascertaining  com- 
pensation. Owners  of  land  are  given  one  day  in 
court  in  which  all  questions  concerning  the  regu- 
larity of  procedure  and  the  amount  of  compensa- 
tion are  determined.  There  is  in  such  a  procedure 
the  least  chance  for  waste  of  time  or  money  in  pre- 
liminary hearings,  and  all  the  responsibility  for 
decisions  is  put  on  the  justice  who  presides  in  the 
case.  But  no  judicial  decision  has  suificiently 
tested  whether  the  land  owner's  rights  are  prop- 
erly safeguarded.  The  procedure  in  Indianapolis 
has  had  the  advantage  of  a  thorough  testing.  Its 
results  are  satisfactory  enough  both  to  the  city 
and  to  the  land  owner  to  recommend  its  adoption 
in  any  jurisdiction  contemplating  a  change  in  pro- 
cedure. But  where  a  common  law  jury  is  pre- 
scribed by  the  constitution  the  adoption  of  the 
Indianapolis  procedure  in  its  entirety  would  not 
be  possible  without  a  constitutional  amendment. 
No  comment  is  necessary  to  emphasize  the  diffi- 
culty of  passing  such  an  amendment,  and  there  is 
considerable  question  whether  it  would  be  neces- 
sary or  expedient  in  the  light  of  experience  in 
Chicago  and  Cleveland  where  the  awards  of  com- 
mon law  juries  have  been  fair  both  to  the  muni- 
cipality and  to  property  owners. 

The  worst  that  can  be  said  of  the  jury  in  con- 
demnation cases  is  that  in  some  jurisdictions  it 

48 


THE   ACQUISITION    OF    LAND 

has  a  lively  prejudice  against  the  city  as  a  pe- 
titioner in  eminent  domain  cases.  The  opinion 
is  also  generally  held  by  those  who  have  had  ex- 
perience in  the  presentation  of  evidence  to  a  jury 
that  the  usual  uncertainty  in  a  jury's  findings  in 
any  civil  case  is  only  increased  by  the  technical 
nature  of  the  evidence  presented  in  condemnation 
cases.  The  jury  is  asked  to  estimate  land  values 
without  having  had  any  previous  experience.  It 
must  depend  entirely  on  its  view  of  the  premises 
and  on  the  opinion  of  real  estate  experts  for  its 
decision.  About  all  a  fairminded  jury  can  do  in 
such  cases  beyond  striking  a  mechanical  average 
of  the  widely  divergent  expert  testimony  is  to 
discount  the  several  claims  in  proportion  to  the 
impression  made  upon  the  jury  by  the  individual 
experts, — and  the  jury  is  asked  to  measure  the 
relative  elasticity  of  conscience  of  experts  after  a 
too  meager  character  study. 

Where  condemnation  cases  must  continue  to  be 
tried  before  a  jury,  the  important  question  in  re- 
vising methods  of  procedure  is  whether  there  is  any 
advantage  in  a  preliminary  hearing,  either  before 
a  permanent  board  or  before  a  board  specially 
appointed  for  each  case.  From  the  data  which  we 
have  just  reviewed  it  is  obvious  that  however  ex- 
cellent the  preliminary  tribunal,  it  results  in  in- 
creased cost  and  delay  in  those  cases  where  its 
findings  are  not  accepted  by  the  land  owners. 
But  it  is  just  as  clear,  first,  that  before  a  prelim- 
inary tribunal  well  constituted  and  acting  under 
5  49 


CARRYING   OUT   THE    CITY    PLAN 

favorable  conditions,  the  procedure  is  simpler  and 
less  expensive;  second,  that  appeals  from  its 
findings  are  few;  and  third,  that  not  infrequently 
its  awards  are  sustained  on  appeal.  Thus  the 
preliminary  hearing  at  its  best  has  the  positive 
merit  of  being  the  means  in  a  great  majority  of 
cases  of  a  large  saving  in  time  and  expense,  and, 
even  in  cases  that  are  appealed,  of  influencing 
the  jury's  verdict.  In  jurisdictions  where  prelim- 
inary boards  are  unsatisfactory,  changes  in  method 
of  appointment  or  in  minor  details  should  be 
tried  before  the  principle  of  a  preliminary  hearing 
— -/ — ^is  condemned.  If  the  tribunal  has  a  political 
^  bias  or  is  too  closely  aifiliated  with  either  of  the 
parties  to  the  proceeding,  it  should  be  replaced 
by  a  strictly  non-partisan  tribunal  appointed  by 
the  court.  A  tribunal  of  permanent  tenure  is 
likely  to  handle  cases  with  more  dispatch,  because 
of  longer  experience,  than  one  appointed  for  each 
case.  A  properly  paid  tribunal  is  a  surer  guaran- 
tee of  competent  service  than  one  paid  an  entirely 
inadequate  sum  or  one  induced  to  prolong  its  de- 
liberations by  a  per  diem  compensation. 

Whatever  reason  may  justify  the  continuance 
of  commissioners  in  eminent  domain  cases  is  not 
applicable  to  procedure  in  Philadelphia  and  other 
cities  and  towns  of  Pennsylvania  and  in  Portland, 
Oregon.  There  seems  to  be  no  good  reason  for 
allowing  damages  to  be  ascertained  in  the  first 
instance  by  a  jury  indifi'erently  qualified  to  pass 
upon  the  evidence  and  then  to  have  the  same 

50 


THE   ACQUISITION    OF    LAND 

evidence  reviewed  by  a  larger  jury  that  is  if  any- 
thing less  qualified  to  reach  a  fair  verdict. 

Even  where  it  can  be  shown  that  awards  of 
commissions  of  acknowledged  excellence  are  gen- 
erally appealed  from  and  are  increased  by  a  jury 
on  appeal,  the  reform  that  is  needed  is  likely  to 
be  more  fundamental  than  the  abolition  of  the 
commission.  A  very  large  factor  in  determining 
the  attitude  both  of  the  general  tax  payer  and  of 
the  owner  of  land,  and  consequently  in  determin- 
ing the  number  of  appeals  from  a  commission's 
findings  and  the  advantage  or  disadvantage  of  the 
city's  position  before  a  common  law  jury,  is  the 
method  of  distributing  the  cost  of  an  improvement. 
A  summary  of  these  methods  in  several  jurisdic- 
tions should,  therefore,  indicate  ways  and  means 
to  reduce  the  initial  investment  of  capital  in  the 
land  required  for  an  improvement,  the  problem 
which  has  just  been  considered,  as  well  as  the  way 
of  providing  capital,  which  will  be  discussed  in  the 
next  chapter. 


51 


CHAPTER  III 

THE    DISTRIBUTION    OF  THE   COST  OF 
LAND  ACQUIREMENT 

CITIES  may  pay  for  improvements  as  they 
go  along,  appropriating  the  funds  out  of 
the  general  Jtax  levy,  or  they  may  make 
special  issues  of  bonds  from  time  to  time,  and  draw 
upon  the  geneTal  tax  levy  gradually  for  the  in- 
terest charges  and  the  redemption  of  the  bonds. 
The  income  applicable  to  improvements  derived 
from  the  tax  levy,  both  directly  and  through  the 
sale  of  bonds  payable  out  of  the  tax  levy,  is  likely 
to  prove  inadequate  in  almost  any  city  in  the 
United  States,  since  a  limit  to  the  borrowing  ability 
of  a  city  is  usually  fixed  in  the  state  constitution 
at  from  2  per  cent  to  10  per  cent  of  its  as- 
sessed valuation,  and  the  amount  available  from 
taxation  is  just  as  effectively  limited  by  the  in- 
elasticity of  the  tax  rate  above  a  certain  figure. 
The  most  obvious  way  out  of  the  financial  diffi- 
culty is  to  remove  the  limitation  on  borrowing 
power,  and  there  are  precedents  for  this  in  nearly 
every  progressive  city.  It  is  in  fact  the  usual  thing 
when  comprehensive  plans  are  proposed  involving 
considerable  financing,  for  the  legislature  to  allow 

52 


DISTRIBUTION    OF   THE   COST 

a  bond  issue  and  provide  that  it  shall  not  be  reck- 
oned in  determining  the  amount  of  the  municipal 
indebtedness. 


DEVICES  EQUIVALENT  TO  BORROWING  OUTSIDE 
THE  DEBT  LIMIT 

The  city  of  Milwaukee  employs  a  somewhat 
different  expedient  in  stretching  its  borrowing 
ability.  The  constitution  of  the  state  of  Wiscon- 
sin allows  cities  to  incur  indebtedness  up  to  5  per 
cent  of  their  valuation,*  provided  that  the  bond 
issue  is  approved  by  the  people  at  a  special  elec- 
tion. Counties  are  also  given  the  right  to  become 
indebted  up  to  5  per  cent  of  their  valuation  and 
no  approval  of  the  people  is  required.  These  pro- 
visions give  Milwaukee  the  right  practically  to 
borrow  money  up  to  10  per  cent  of  its  assessed 
valuation,  since  most  of  the  county's  valuation  is 
included  within  the  city's  limits.  Improvements 
are  construed  whenever  possible  to  be  county  im- 
provements in  order  to  give  the  city  a  greater  bor- 
rowing power  and  avoid  the  submission  of  the 
bond  issue  to  the  people. 

But  Milwaukee  and  other  cities  of  Wisconsin 
have  also  worked  out  a  method  of  purchase  of 
land  by  contract,  which  amounts  really  to  pur- 
chase on  the  instalment  plan,  as  a  further  relief 
from  the  exigencies  of  the  financial  situation.  The 
same  practice  is  sanctioned  by  legislation  in  Min- 
nesota and  is  employed  at  least  in  Minneapolis. 

*  Constitution  of  Wisconsin,  Article  XI,  Section  3. 
53 


CARRYING   OUT  THE    CITY    PLAN 

This  method  is  useful  where  a  city  is  close  up  to 
its  limit  of  indebtedness.  The  legislation  of  both 
states  specifically  provides  that  the  contract  shall 
not  create  a  corporate  liability  or  constitute  a 
pledge  of  the  general  credit  of  the  city.  In  con- 
struing this  language  the  supreme  court  in  both 
states  has  held  that  there  is  no  obligation  on  the 
part  of  the  city  to  meet  unpaid  instalments,  since 
the  city  has  merely  an  option  to  purchase,  with 
the  right  of  possession  till  default  in  payment.* 

It  was  argued  in  Burnham  vs.  Milwaukee,  98 
Wis.  128,  that  a  land  contract  was  merely  a 
scheme  to  evade  the  constitutional  limitation  on 
municipal  indebtedness,  but  the  supreme  court 
sustained  the  contract,  holding  that  in  spite  of  the 
weight  and  persuasiveness  of  the  argument  the 
legal  meaning  of  the  statute  was  definite  and 
could  not  be  twisted  or  enlarged.  Its  conclusion 
was,  "that  the  unpaid  instalments  upon  the  park 
land  contracts  do  not  constitute  a  corporate 
indebtedness  within  the  meaning  of  the  consti- 
tution because  the  payment  thereof  is  entirely 
optional  on  the  part  of  the  city.''  To  the  same 
effect  are  Perrigo  vs.  Milwaukee,  92  Wis.  236; 
Milwaukee  vs.  Milwaukee  County,  95  Wis.  424; 
and  in  Minnesota*,  Kelley  vs.  City  of  Minneapolis, 
63  Minn.  125. 

Cities  often  have  opportunities  to  secure  a  tract 
of  land  at  a  low  figure  subject  to  immediate  ac- 

*  Acts  of  Wisconsin,  1891,  Chapter  179,  Section  8.  Special  laws 
of  Minnesota,  1889,  Chapter  30,  Section  2. 

54 


DISTRIBUTION    OF   THE    COST 

ceptance  of  the  offer.  The  offer  will  not  stand 
until  a  bond  issue,  which  must  be  submitted  to 
popular  vote,  has  been  secured,  and  the  amount 
of  such  an  issue  might  increase  the  indebtedness 
beyond  the  limit  of  the  borrowing  power.  In 
such  an  emergency  the  cities  of  Wisconsin  and 
Minnesota  may  enter  into  a  contract  with  the 
owners  of  land,  paying  5  per  cent  of  the  purchase 
price  at  the  date  of  contract  and  the  balance 
in  annual  instalments.  A  piece  of  land  costing 
$100,000  may  be  paid  for  by  an  initial  instalment 
of  ?5,ooo  and  19  annual  instalments  of  $5,000  each. 
In  providing  for  these  payments,  the  city  issues 
bonds  each  year,  bearing  4  per  cent  interest,  the 
issues  being  for  twenty  years,  of  which  5  per  cent 
is  redeemed  each  year.  The  amount  of  each  bond 
issue  is  made  up  of  the  annual  instalment  of  $5,000 
and  the  interest  on  the  balance  of  the  purchase 
price  at  4  per  cent.  The  last  bond  in  the  issue 
will  be  redeemed  forty  years  after  the  purchase  of 
the  land.  Each  year  the  amount  required  for 
sinking  fund  and  interest  charges  on  each  annual 
bond  comes  out  of  the  tax  levy. 

There  are  several  advantages  in  the  contract  ^.  ^/ 
method  of  paying  for  land:  First,  the  payment 
is  distributed  over  forty  years  without  the  ne- 
cessity of  legislative  sanction  for  a  long  term  bond ; 
second,  desirable  tracts  of  land  may  be  purchased 
at  any  time  during  the  year  at  an  advantageous 
price  and  the  city  is  not  compelled  to  wait  for  the 
time-wasting  formality  incident  to  bond  issues; 

55 


CARRYING   OUT   THE    CITY    PLAN 

third,  the  city's  borrowing  power  is  in  effect  con- 
siderably extended. 

Leaving  out  of  consideration  financially  self- 
sustaining  municipal  investments,  like  many  mu- 
nicipal water  works,  which  are  usually  reckoned 
apart  from  the  municipal  debt  and  which  do  not 
impose  a  burden  upon  the  tax  payers  as  such,  the 
temporary  relief  from  financial  difficulties  secured 
as  above  described,  by  extending  the  limit  of  a 
city's  borrowing  power  or  by  expedients  such  as 
the  contract  method  of  paying  for  land,  leaves 
the  ultimate  burden  on  the  municipality  and  sub- 
stantially distributes  it  over  the  whole  of  the 
taxable  property  of  the  city  in  accordance  with 
valuation.  Conservative  policy  will  never  allow 
a  very  great  stretching  of  the  debt  limit,  and  any 
considerable  increase  beyond  the  customary  an- 
nual tax  rate  is  bitterly  resisted.  Sources  of 
municipal  revenue  other  than  the  general  prop- 
erty tax  are  practically  negligible  in  this  con- 
nection in  American  cities.  It  is  therefore  very 
important  to  relieve  the  general  tax  payer  of  a 
portion  of  the  cost  of  public  improvements  where- 
ever  they  can  be  found  to  be  of  so  much  special 
benefit  to  the  owners  of  a  limited  area  as  to  justify 
a  special  assessment. 

SPECIAL  ASSESSMENTS 
I.    DEFINITION 

"A  special  assessment  is  a  compulsory  contri- 
bution paid  once  for  all  to  defray  the  cost  of 

56 


DISTRIBUTION    OF   THE    COST 

a  special  improvement  to  property  undertaken  in 
the  public  interest  and  repaid  to  the  government 
in  proportion  to  the  special  benefits  accruing  to 
the  property  named/'* 

Though  a  special  assessment  is  an  exercise  of 
the  taxing  power,  it  differs  from  a  tax  in  two  par- 
ticulars: First,  the  nature  of  a  special  assessment 
makes  it  a  charge  for  a  real  benefit  to  property 
and  one  which  can  be  more  or  less  accurately 
measured  in  money  values;  second,  it  has  been 
almost  uniformly  held  by  judicial  decisions  that 
special  assessments  need  not  conform  to  the  con- 
stitutional requirement  that  taxation  shall  be 
equal  and  uniform. 

The  equity  of  this  species  of  taxation  is  defended  [ 
on  the  theory  that  the  individuals  of  the  com-- 
munity  whose  holdings   have   been   made  more 
valuable  by  the  expenditure  of  the  community's  ^/^ 
money  should  repay  at  least  some  portion  of  that :  ^ 
outlay.     Specific  application  of  the  principle  may 
produce  an  unfair  result.     If  an  assessment  for 
street  improvement  is  figured  by  the  front  foot, 
it  is  unfair  to  the  man  with  a  long,  shallow  lot. 
If  it  is  levied  in  accordance  with  the  area  of  lots, 
it  is  unfair  to  the  land  with  much  depth  and  small 
frontage.     It  is  impossible  to  devise  any  method 
of  taxation  which  distributes  the  financial  burden 
automatically  with  perfect  and  indisputable  jus- 
tice.    If  a  lot  which  was  worth  Ji,ooo  before  a 
public  improvement  can  be  sold  for  ?i,ioo  after 

*  Quarterly  Journal  of  Economics,  April,  1893.  ■    ^ 

57 


CARRYING   OUT   THE    CITY    PLAN 

it,  and  if  the  lot  is  assessed  any  amount  up  to  $ioo, 
the  method  of  arriving  at  this  amount  is  im- 
material, since  the  result  is  just  enough. 

2.     HISTORY 

A  special  assessment  law  enacted  for  New  York 
City  in  1691  is  said  to  be  the  first  true  special 
assessment  law  in  the  United  States,  and  to  have 
been  based  on  a  law  passed  in  1667  to  aid 
the  rebuilding  of  London  after  the  great  fire  of 
1666.*  This  law  of  1667  was  one  of  three  special 
assessment  laws  enacted  in  Great  Britain  before 
1900  and  their  use  was  very  infrequent.  But  in 
1658  the  general  court  of  Massachusetts  appointed 
a  committee  "to  lay  out  the  way  through  Roxbury 
lots  to  Boston  farms,  and  to  judge  what  is  meet 
satisfaction  to  the  proprietors  for  the  way,  and 
that  they  have  power  to  impose  an  equal  part 
upon  all  such  of  Boston  or  other  towns  as  shall 
have  benefit  of  such  way.  "j  Whatever  may  have 
been  the  origin  of  the  principle,  because  of  its 
general  use  and  extensive  development  in  the 
United  States  it  is  recognized  even  in  Great 
Britain  as  an  "American  device." 

The  New  York  law  of  1691  assessed  the  cost  of 
street  pavements  and  sewers  on  the  property 
specially  benefited,  in  proportion  to  the  benefits 
received.  Pennsylvania  passed  a  similar  law  in 
1700:   "To  defray  the  charge  of  pitching,  paving, 

*  Colonial  Laws  of  New  York,  Vol.  I,  pp.  269-271. 
t4  Massachusetts  Colonial  Records,  Part  I,  p.  327. 

58 


DISTRIBUTION    OF   THE   COST 

graveling,  and  regulation  of  said  streets  .  .  . 
each  inhabitant  was  to  pay,  in  proportion  to  the 
number  of  feet  of  his  lots  ....  adjoining, 
on  each  or  either  side  of  the  said  streets.''*  Mas- 
sachusetts in  1709  and  1761  provided  that  "Per- 
sons receiving  any  benefit  from  common  sewers, 
either  direct  or  remote,  were  obliged  to  pay  such 
proportional  part  of  making  or  repairing  the  same 
as  should  be  assessed  to  them  by  the  Selectmen  of 
the  towns,  "t  The  old  New  York  law  was  little 
used  until  1 787  when  it  was  amended  and  made 
somewhat  more  definite.! 

The  adoption  of  the  principle  was  extensive 
after  the  war  of  18 12.  The  following  dates  in- 
dicate about  the  time  when  the  legislation  was 
passed  in  different  states  and  territories,  the  dates 
usually  indicating  the  incorporation  of  the  prin- 
ciple in  the  charter  of  some  city,  followed  usually 
by  court  decisions  in  the  main  upholding  the  as- 
sessment. The  active  use  of  the  special  assess- 
ment principle  may  be  considered  as  dating  in  New 
York  from  181 3;  Kentucky,  181 3;  Michigan, 
1827;  Pennsylvania,  1832;  Louisiana,  1832; 
New  Jersey,  1836;  Ohio,  1836;  Illinois,  1837; 
Maryland,  1838;  Connecticut,  1843;  Wisconsin, 
1846;  Indiana,  1846;  Mississippi,  1846;  Cali- 
fornia, 1850;  Oregon,  1851;  Missouri,  1853; 
Rhode    Island,    1854;     Iowa,    1855;     Delaware, 

*  Cited  in  Hammett  vs.  Philadelphia,  65  Pa.  St.  158. 

t  Ancient  Charters  of  Massachusetts,  pp.  389,  651. 

X  Tenth  Session  Laws  of  New  York,  Chapter  88,  p.  544. 

59 


CARRYING   OUT  THE    CITY    PLAN 

1857;  Kansas,  1864;  Massachusetts,  1865; 
District  of  Columbia,  1865;  Virginia,  1866; 
Vermont,  1868;  West  Virginia,  1868;  Minnesota, 
1869;  New  Hampshire,  1870;  Texas,  1871; 
Maine,  1872;  Nebraska,  1873;  Florida,  1877; 
Georgia,  1881;  Nevada,  1881;  Washington, 
1883;  Alabama,  1885;  North  Carolina,  1887; 
North  Dakota,  1887;  South  Dakota,  1887; 
Montana,  1887;  Idaho,  1887;  Wyoming,  1887; 
Utah,  1888;  Colorado,  1889;  Oklahoma,  1890; 
North  Mexico,  1891;  Arizona,  1893.* 

In  early  times  special  assessments  were  most  fre- 
quently used  only  to  defray  the  cost  of  construc- 
tion of  improvements,  but  the  language  of  the 
first  Massachusetts  act  is  broad  enough  to  allow 
also  an  assessment  to  cover  the  cost  of  land  ac- 
quirement. It  is  only  the  use  of  special  assess- 
ments to  defray  the  cost  of  land  acquirement  with 
which  we  are  concerned  in  the  present  survey,  al- 
though a  special  assessment  for  a  more  restricted 
purpose  is  based  on  the  same  principle. 

3.      SPECIAL     ASSESSMENTS     IN     ACQUIRING     LAND     FOR 
PARK    PURPOSES 

It  is  generally  agreed  that  parks  judiciously  ac- 
quired in  a  city  are  a  benefit  to  the  whole  com- 
munity, but  the  use  of  some  of  them,  especially  of 
small  parks,  is  confined  almost  wholly  to  the  peo- 
ple of  the  locality  in  which  they  occur,  while  other 

*  Theory  and  Practice  of  Special  Assessments.  Transactions. 
American  Society  of  Civil  Engineers,  Vol.  38.     Paper  817. 

60 


DISTRIBUTION    OF   THE    COST 

parks,  especially  the  large  ones,  may  be  used  by 
people  from  all  parts  of  the  city. 

It  is  also  a  real  estate  axiom  that  residence 
property  contiguous  to  parks  commands  a  higher 
price,  other  things  being  equal,  than  similar  prop- 
erty several  blocks  away.  We  should  therefore 
expect  the  cost  of  park  acquisition  to  be  distrib-  ' 
uted,  first,  by  an  assessment  on  such  property  as 
really  receives  a  special  increase  in  value  because 
of  the  nearness  of  the  park;  and  second,  either  by 
assessment  on  ^^uch  larger  area  assumed  to  k^ 
include  practically  the  whole  public  served  by 
the  park  as  a  local  institution,  or  else  by  general 
taxation  on  the  whole  city,  y 

In  the  case  of  small  parks,  it  is  logical  and  fair 
to  subdivide  a  large  city  into  local  "park  dis- 
tricts" or  ''improvement  districts'*  and  to  make 
each  district  pay  for  its  own  local  park.  This 
practice  is  not  only  fair  but  extremely  salutary. 
It  forces  a  clearer  understanding  of  what  each 
dollar  of  the  tax  payer's  money  has  gone  to  secure, 
thus  checking  a  loose  extravagance  in  the  acquire- 
ment of  park  lands,  and  at  the  same  time  makes  it 
possible  for  a  progressive  and  prosperous  locality 
which  is  in  need  of  parks  to  proceed  with  their 
acquirement  unhampered  by  the  resistance  of 
other  parts  of  the  city  which  are  satisfied  with  the 
existing  situation  or  are  really  unable  to  afford  fur- 
ther taxation  for  park  purposes.  The  principle  is 
the  same  as  that  which  justifies  the  subdivision 
of  a  state  into  municipalities  for  the  localization 

6i 


CARRYING   OUT   THE    CITY    PLAN 

of  taxes  required  for  local  purposes,  and  it  becomes 
more  and  more  important,  as  the  size  of  municipal 
units  is  increased,  for  dealing  with  affairs  that 
affect  large  groups  of  contiguous  communities 
having  many  conflicting  interests. 

But  although  the  amount  and  kind  of  benefit 
resulting  from  large  and  small  parks  is  about  the 
same  in  all  cities  similarly  situated,  the  practice 
in  paying  for  the  cost  of  park  areas  shows  the 
greatest  divergence.  It  is  usual  in  the  United 
States  to  assess  no  part  of  the  cost  of  acquiring 
park  lands  on  property  specially  benefited.  In 
some  cities  the  law  does  not  permit  such  assess- 
ment. In  other  cities  the  assessment  is  made  in 
so  limited  a  way  as  to  give  the  community  little 
relief  from  the  financial  burden.  In  several  cities, 
notably  Seattle  and  Portland  of  the  western  cities, 
and  Baltimore  in  the  east,  which  assess  private 
property  very  liberally  for  street  improvement, 
including  the  cost  of  land  takings,  there  is  no 
assessment  for  the  acquisition  of  land  for  parks. 

In  the  cities  of  Ohio,  it  was  illegal  up  to  19 12  to 
raise  the  cost  of  land  acquired  by  condemnation 
by  a  special  assessment.  The  case  that  establishes 
this  law  in  Ohio  is  City  of  Dayton  vs.  Bauman,  66 
Ohio  St.  379.  In  that  case  the  city  appropriated 
land  for  the  extension  of  two  streets  and  assessed 
the  cost  on  abutting  lots.  In  deciding  against  the 
validity  of  the  assessment  the  court  based  its  de- 
cision entirely  on  Section  19,  Article  I  of  the  Ohio 
constitution,  holding  that  a  special  assessment  was 

62 


DISTRIBUTION    OF   THE   COST 

an  indirect  method  of  evading  that  constitutional 
limitation.     This  section  provides:  ^ 

"Private  property  shall  ever  be  held  inviolate,  but 
subservient  to  the  public  welfare  .  .  .  where  pri- 
vate property  shall  be  taken  for  a  public  use,  a  com- 
pensation therefor  shall  first  be  made  in  money,  or 
first  secured  by  deposit  of  money,  and  such  compensa- 
tion shall  be  assessed  by  a  jury  without  deduction  for 
benefits  to  any  property  of  the  owner/' 

The  court  said : 

"The  limitation  of  Section  19  goes  to  the  full  extent 
of  prohibiting  the  assessment  of  compensation,  damages 
and  costs  of  land  appropriated  upon  any  real  estate 
whatever.  In  short,  money  cannot  be  raised  by  assess- 
ment to  pay  such  compensation,  damage  and  costs,  but 
such  money  must  be  raised  by  taxation  .<^he  public 
appropriate  land  for  public  use,  and  the  public  must  pay. 
Nothing  less  than  the  public  can  appropriate  lands  by 
legal  process  for  public  use.  If  an  assessment  district 
should  be  formed  and  a  petition  filed  by  such  district 
to  appropriate  private  property  for  the  use  of  such  dis- 
trict, or  the  public,  a  demurrer  to  such  petition  would 
be  sustained  on  the  ground  that  the  constitution  gives 
no  power  of  appropriation  of  private  property  to  such 
assessment  district,  such  district  not  being  the  public 
and  the  power  of  appropriation  being  given  by  Section 
19  by  the  public  only. 

"The  power  of  appropriation  being  given  to  the 
public  only  and  only  for  the  public  use,  it  follows  that 
the  public,  the  taker,  must  pay  for  what  it  takes,  be- 
cause he  who  takes  from  another  should  himself  make 
restitution,  not  compel  others  to  pay  for  what  they  have 
not  taken.*' 

63 


CARRYING   OUT   THE    CITY    PLAN 

The  language  of  the  decision  is  given  since  it  is 
believed  to  be  the  most  pointed  judicial  expression 
of  the  chief  argument  against  the  validity  of  spe- 
cial assessments.  It  is  in  substance  a  decision 
that  a  tax,  unless  uniformly  levied,  amounts  to  an 
illegal  taking  of  private  property.  In  this  re- 
spect the  decision  is  contra  to  the  great  weight  of 
authority  in  the  United  States. 

In  19 1 2  the  people  of  Ohio  ratified  the  following 
constitutional  amendment  which  makes  the  law 
of  Ohio  uniform  with  that  of  the  rest  of  the  coun- 
try: 

*'  Section  1 1 .  Any  municipality  appropriating  pri- 
vate property  for  a  public  improvement  may  provide 
money  therefor  in  part  by  assessments  upon  benefited 
property  not  in  excess  of  the  special  benefits  conferred 
upon  such  property  by  the  improvements.  Said  as- 
sessments, however,  upon  all  the  abutting,  adjacent, 
and  other  property  in  the  district  benefited,  shall  in 
no  case  be  levied  for  more  than  fifty  per  centum  of  the 
cost  of  such  appropriation.''* 

In  Missouri  we  find  St.  Louis  making  no  special 
assessment  for  the  cost  of  taking  park  lands,  but 
in  the  same  state  Kansas  City  assesses  the  entire 
cost  of  park  acquisition  on  the  land  specially  bene- 
fited. 

In  Massachusetts,  since  1882,  park  commis- 
sioners have  been  allowed  to  assess  an  amount  not 
exceeding  one-half  of  the  special  benefit,  but  no 

*  Constitution  of  Ohio,  with  Amendments  proposed  by  Constitu- 
tional Convention  of  1912,  Article  XVIII,  Section  11. 

64 


DISTRIBUTION    OF   THE   COST 

assessment  can  be  laid  upon  any  land  except  such 
as  abuts  on  a  park  or  on  a  way  bounded  by  a  park.* 
Whether  because  of  oificial  inertia,  or  because  of 
the  ineffectiveness  of  the  legislation  due  to  its 
cumbersome  machinery  or  to  the  limitation  on  the 
assessment  area,  special  assessments  have  been 
rarely  levied.  Inquiry  in  ten  of  the  largest  cities 
in  the  state  shows  that  only  in  two  has  there 
been  any  use  of  this  power,  and  that  quite  in- 
frequent. In  takings  by  the  Metropolitan  Park 
Commission  of  Massachusetts,  the  practice  is  to 
levy  no  assessment;  but  where  owners  are  com- 
pensated for  land  taken  or  damaged,  the  amount  of 
their  compensation  is  reduced  by  the  amount  rep- 
resenting the  special  benefit  to  the  land  remaining 
by  reason  of  the  improvement.  Owners  whose 
land  is  not  taken  may  be  equally  benefited,  but 
the  benefit  is  not  assessed. 

The  New  York  practice  shows  interesting 
changes  from  the  time  of  the  acquisition  of  Cen- 
tral Park  to  the  present.  Both  the  creation  of 
Central  Park  in  1853  and  of  Prospect  Park, 
Brooklyn,  in  1865  were  considered  to  benefit  prop- 
erty in  the  vicinity,  and  that  benefit  was  held  to 
diminish  with  the  distance  from  the  park.  Of  the 
entire  land  cost  of  Central  Park,  J5 1,65 7, 590,  or 
32  per  cent,  was  assessed  on  property  specially 
benefited,  and  the  assessment  was  collected  in  one 
instalment.    Of  the  entire  cost  of  Prospect  Park, 

*  Acts  of  Massachusetts,  1882,  Chapter  154,  Section  7. 
6  65 


CARRYING   OUT   THE    CITY    PLAN 

!? 1, 2 36,65 5,  or  38.5  per  cent,  was  assessed  on  pri- 
vate property  specially  benefited. 

The  report  of  the  park  commissioners  for  1867 
does  not  give  the  valuation  of  the  property  in  the 
area  assessed  because  of  special  benefit  due  to  the 
creation  of  Prospect  Park,  and  it  is  now  possible 
only  to  approximate  the  proportion  of  increase  in 
value  which  the  special  assessment  represented. 
Roughly,  the  special  assessment  district  in  the 
Prospect  Park  case  included  30  per  cent  of  the 
area  of  ward  8,  12  per  cent  of  ward  9,  and  20 
per  cent  of  ward  20.  The  value  of  the  assessed 
portion  of  ward  8  in  1865  has  been  reckoned  at  30 
per  cent  of  the  entire  valuation  of  the  ward,  or  at 
J  1, 200,000.  The  increase  in  value  in  the  area  as- 
sessed in  ward  8  is  estimated  to  be  400  per  cent 
as  against  an  increase  in  value  of  100  per  cent  in 
other  parts  of  the  city  since  1865.  At  this  rate 
its  assessed  value  in  1905  would  be  ^6,000,000; 
estimated  value  at  the  ratio  of  increase  of  the 
rest  of  the  city,  ^2,400,000;  increase  in  value  as- 
sumed to  be  largely  due  to  the  improvement, 
^3,600,000.  Since  the  entire  assessment  over  the 
three  wards  was  only  J  1,2 36,65 5,  we  may  conclude 
with  due  allowance  for  inflation  of  values  and  in- 
accuracy of  estimates  that  the  special  assessment 
was  not  in  excess  of  the  special  benefit  to  the 
property.* 

The  figures  for  Central   Park  are  even  more 

*  Report  of  the  Chief  Engineer  of  the  Board  of  Estimate  and 
Apportionment,  October  19,  1907,  pp.  15  flF. 

66 


DISTRIBUTION    OF   THE    COST 

Striking.  Value  of  land  assessed  for  benefit  (half 
the  valuation  of  wards  12,  19,  and  22),  $13,250,- 
000;  estimated  value  of  land  of  this  same  area  in 
1873,  $118,000,000;  estimated  value  at  the  ratio 
of  increase  of  the  rest  of  the  city  at  100  per  cent, 
$26,500,000;  increase  in  value  due  to  the  improve- 
ment, $91,500,000;  amount  of  special  assessment, 
$1,657,590.  Here,  too,  the  valuations  are  prob- 
ably inflated  and  the  estimate  of  the  valuation  of 
assessed  property  is  no  better  than  a  rough  guess, 
but  the  margin  of  increase  over  the  special  assess- 
ment is  wide  enough  to  justify  the  conclusion  that 
land  owners  were  not  unfairly  burdened  by  the 
share  of  the  cost  of  the  improvement  levied 
against  their  property.* 

From  the  consolidation  of  Greater  New  York 
under  the  charter  of  1901  to  the  year  1907,  there 
was  a  legal  reason  for  the  city  assuming  the  entire 
cost  of  acquiring  title  to  parks,  since  a  resolution 
of  a  "local  improvement  board'*  was  considered 
necessary  before  any  part  of  the  expense  of  ac- 
quiring land  could  be  assessed  as  a  special  benefit 
on  a  local  district.  The  decision  of  the  court  of 
appeals  of  March  5,  1907,  seems  to  change  the 
impression  in  this  regard.  The  case  was  Rose 
Reis  vs.  City  of  New  York,t  which  is  held  to  have 
decided  that  the  board  of  estimate  and  apportion- 
ment has  the  right  to  initiate  local  improvements 
and  to  provide  for  the  assessment  of  their  cost 

*Op.  cit.  pp.  20  ff. 

t  Rose  Reis  vs.  City  of  New  York,  et  al,  i88  N.  Y.  58. 

67 


CARRYING   OUT  THE    CITY    PLAN 

against  property  deemed  to  have  received  a  special 
benefit.  Following  this  decision  the  board  of 
estimate  and  apportionment  resolved  that  prop- 
erty specially  benefited  by  parks  should  be  assessed 
for  their  cost.  Previous  to  that  time  requests 
for  parks  frequently  had  come  from  local  sources, 
and  the  first  striking  result  of  the  action  of  the 
board  was  the  falling  off  in  such  requests. 

Legislation  of  191 1  gives  full  recognition  to  the 
benefit  theory  by  allowing  the  board  of  estimate 
and  apportionment  to  determine  what  portions  of 
the  costs  of  park  lands  shall  be  paid  by  the  city  of 
New  York,  what  proportion  by  one  or  more  bor- 
oughs, or  parts  of  one  or  more  boroughs,  and  what 
proportions  by  owners  whose  land  is  particularly 
benefited.* 

In  Minneapolis  the  board  of  park  commissioners 
determines  what  percentage,  if  any,  of  the  amount 
required  for  the  acquisition  of  land  for  park  pur- 
poses shall  be  assessed  on  the  land  specially  bene- 
fited. The  fixing  of  the  area  of  benefit  and  the 
determination  of  the  amount  which  each  lot  bene- 
fited shall  pay  are  the  duty  of  the  three  park  as- 
sessors appointed  by  the  district  court.  After 
hearing  evidence  the  assessors  make  findings  and 
file  them  in  the  district  court,  which  has  power  to 
hear  objections  and  confirm  or  revise  the  assess- 
ment or  send  the  case  to  new  assessors.!  It  is 
the  practice  for  the  courts  to  confirm  assessments, 

*  See  Appendix,  p.  249  for  text. 

t  Special  Laws  of  Minnesota,  1889,  Chapter  30,  Section  4. 
68 


DISTRIBUTION    OF   THE    COST 

unless  satisfied  that  the  assessors  have  been  gov- 
erned by  improper  motives  or  have  proceeded  on 
erroneous  principles,  or  have  based  their  findings 
on  a  mistake  of  facts.  The  percentage  which 
private  land  owners  have  paid  under  park  takings 
has  varied  greatly  under  this  procedure. 

4.     PARK   DISTRICTS    FOR   ASSESSMENT   PURPOSES 

In  the  comparatively  recent  practice  of  some 
cities  *'park  districts"  have  been  laid  out,  each 
treated  as  a  separate  entity,  both  for  the  purpose 
of  locating  park  areas  and  for  assessing  the  cost  of 
their  acquisition. 

Kansas  City.  In  1908  the  entire  city  was  di- 
vided into  six  park  districts,  administered  as  one 
system  by  three  commissioners  appointed  by  the 
mayor.  The  commissioners'  duties  are  to  devise 
and  adopt  a  system  of  parks,  parkways,  and  boule- 
vards, and  to  select  such  lands  as  are  appropriate 
for  these  purposes  within  or  without  the  city 
limits.  They  must  provide  at  least  one  park  in 
each  park  district.  Responsibility  for  the  selec- 
tion of  areas  is  left  with  the  park  commissioners, 
since  only  on  their  recommendation  can  the  com- 
mon council  provide  for  the  acquisition  of  the 
necessary  land  by  ordinance,  and  it  is  made  the 
duty  of  the  common  council  to  carry  out  the 
park  commissioners'  recommendation.* 

The  cost  of  acquiring  land  outside  of  the  city 
limits  must  be  paid  out  of  the  general  tax  levy  or 

*  Charter  of  Kansas  City,  Article  13,  Section  8  ff. 

69 


CARRYING   OUT  THE    CITY    PLAN 

by  a  bond  issue  which  is  a  charge  on  future  general 
tax  levies;  but  within  the  city  limits  land  for 
parks,  parkways,  public  squares,  and  boulevards, 
whether  acquired  by  purchase  or  condemnation, 
may  be  paid  for  by  special  assessment  on  the  land 
specially  benefited.  Special  assessments  are  also 
used  to  defray  the  cost  of  construction  of  boule- 
vards and  park  roads  on  which  private  property 
abuts  and  are  levied  directly  on  such  property,  as 
in  an  ordinary  street  improvement.  The  remain- 
der of  the  cost  of  construction  and  all  the  main- 
tenance cost  is  met  by  a  tax  not  to  exceed  2>^  mills 
levied  over  each  park  district  in  accordance  with 
its  valuation,  and  by  a  special  maintenance  tax 
of  lo  cents  a  front  foot  on  the  property  which 
fronts  on  parkways,  boulevards,  roads,  or  avenues.* 
The  funds  of  each  district  are  kept  separate. f 

Kansas  City  is  fortunate  in  the  provisions  of 
its  law  regarding  condemnation  proceedings  and 
special  assessment  for  benefit.  The  ordinance  of 
council  following  the  recommendation  of  the  park 
commission  describes  all  the  properties  to  be  ac- 
quired for  the  proposed  improvement  or  group  of 
improvements  and  the  area  which  is  deemed  spe- 
cially benefited.  This  area  may  include  one  or 
more  park  districts  or  a  part  or  parts  of  such  dis- 
trict or  districts.  The  proceedings  are  initiated 
by  petition  of  the  city  in  the  circuit  court,  and 
when  the  parties  have  properly  joined  issues  the 

*  Charter  of  Kansas  City,  Article  13,  Sections  33  and  34. 
t  Charter  of  Kansas  City,  Article  13,  Section  23. 
70 


DISTRIBUTION    OF   THE    COST 

case  is  heard  by  a  jury  of  six  which  ascertains 
the  compensation  for  property  taken  and  for  the 
damage  sustained  by  property  not  actually  taken. 
The  same  jury  assesses  the  benefit  of  the  improve- 
ment, first  charging  to  the  city  that  portion  of  the 
cost  which  represents  the  benefit  that  accrues  to 
the  city  at  large,  and  then  distributing  the  bal- 
ance of  the  cost  by  special  assessment  against  the 
parcels  of  private  property  found  specially  bene- 
fited. The  verdict  of  the  jury  is  reviewed  by  the 
circuit  court  and  may  be  appealed  from  to  the 
court  of  appeals  on  any  question;  but,  curiously, 
only  corporations  have  a  right  to  appeal  to  a  com- 
mon law  jury  and  this  right  is  almost  never  taken 
advantage  of.* 

In  legal  theory  the  assessments  are  approxi- 
mately in  proportion  to  and  not  exceeding  the 
special  benefit,  and  if  the  cost  of  land  acquire- 
ment should  exceed  the  estimated  special  benefit 
the  difi'erence  would  be  paid  by  a  general  tax  on 
the  whole  park  district  or  on  the  whole  city.  As 
a  matter  of  practice  the  assessing  juries  have  with 
almost  absolute  unanimity  found  that  the  entire 
benefit  from  the  acquisition  of  park  land  is  to 
private  property.  The  right  to  assess  the  entire 
cost  of  a  "public  improvement"  on  a  specially 
benefited  area — to  find,  in  other  words,  that  there 
has  been  no  "public  benefit" — has  been  declared 
constitutional  in  several  cases. t  The  city,  through 
its  right  to  have  the  proceedings  discontinued  at 

*  See  p.  28.  f  See  Appendix,  p.  250. 

71 


CARRYING   OUT  THE   CITY    PLAN 

any  time  before  the  first  assessment  is  paid  into 
the  city  treasury  by  repealing  the  ordinance  of 
condemnation,*  is  protected  against  the  finding  of 
a  jury  that  the  benefit  is  entirely  a  public  one  and 
that  no  assessment  shall  be  laid  against  the  pri- 
vate property. 

The  special  assessment  method  as  applied  in 
Kansas  City  makes  unnecessary  an  appropriation 
by  the  council  or  a  bond  issue,  both  of  which 
would  increase  the  general  tax  rate.  Payments 
for  the  purchase  of  land  are  met  either  directly 
by  park  fund  certificates  or  these  certificates  are 
sold  to  provide  purchase  money  at  a  price  not  less 
than  the  face  value  of  the  amount  of  special  assess- 
ment, excluding  interest.  The  payment  of  special 
assessments  is  usually  by  instalments,  and  dis- 
tribution of  the  amount  collected  is  made  at  least 
semi-annually  to  certificate  holders  who  are  en- 
titled to  the  proportional  share  of  the  special 
assessment  represented  by  their  certificate  with 
interest  at  6  per  cent.f 

The  Kansas  City  park  system  has  not  been  se- 
cured any  more  cheaply  than  other  park  systems, 
with  the  exception  that  the  simplicity  of  condem- 
nation procedure  has  probably  resulted  in  some 
saving  in  the  cost  of  land,  but  the  financial  burden 
has  been  distributed  with  more  fairness.  Prac- 
tically the  entire  amount  of  special  assessments 
has  been  collected.     From  the  beginning  of  the 

*  Charter  of  Kansas  City,  Article  13,  Section  19. 

t  Charter  of  Kansas  City,  Article  13,  Section  24. 

72 


DISTRIBUTION    OF   THE    COST 

history  of  the  park  system  in  1892  to  April,  191 1, 
its  cost  was  ?  1 0,372,876.  Of  this  sum,  ^500,000 
was  raised  by  a  bond  issue  in  1903;  ^496,181  was 
appropriated  for  construction  and  maintenance  in 
Swope  Park,  the  city's  largest  park;  and  ^651,776 
which  was  spent  for  miscellaneous  items  entirely 
separate  from  the  expense  of  acquiring  the  land  or 
improving  it,  was  also  appropriated  out  of  the 
general  tax  levy.  Deducting  these  three  items, 
there  is  left  ^8,724,919,  representing  the  funds 
raised  by  special  assessment.* 

The  significant  thing  about  the  Kansas  City 
method  of  financing  its  park  system  is  that  85  per 
cent  of  the  total  cost  was  distributed  over  the 
district  which  received  the  benefit,  and  that  the 
entire  cost  of  acquiring  the  land  was  assessed 
strictly  on  the  land  found  to  be  specially  bene- 
fited. 

Denver.  By  the  charter  adopted  March  29, 
1904,  Denver  was  divided  into  four  park  districts 
administered  by  an  appointed  commission  of  five, 
one  from  each  district  in  addition  to  the  chairman. 
The  cost  of  acquiring  land  for  parks  is  met,  as  in 
Kansas  City,  by  a  special  assessment  based  en- 
tirely on  the  benefit  theory,  and  the  cost  of  im- 
proving the  park  areas  is  covered  by  a  uniform 
park  tax  not  to  exceed  two  mills.  Occasionally 
the  park  fund  is  increased  by  the  revenue 
from  other  sources  of  taxation.  Compared  with 
Kansas   City,    Denver  is  at   a   disadvantage  in 

*  Report  of  Board  of  Park  Commissioners,  1909,  Table  22. 
73 


CARRYING   OUT  THE    CITY    PLAN 

choosing  one  commissioner  from  each  district, 
since  this  method  is  too  much  Hke  that  of  electing 
representatives  to  the  city  council  from  each 
ward  and  is  apt  to  result  in  the  same  difficulties. 
Where  the  make-up  of  the  commission  emphasizes 
separate  localities  rather  than  the  whole  city,  the 
distribution  of  park  areas  and  the  distribution  of 
appropriations  for  improvements  over  these  areas 
may  present  troublesome  questions. 

The  second  important  difference  is  in  the  pro- 
cedure for  acquiring  land  and  assessing  the  cost 
on  specially  benefited  property.  The  board  of 
park  commissioners  in  Denver  prepares  a  prelim- 
inary estimate  of  the  cost  of  acquiring  the  land  for 
each  improvement.  This  report,  which  contains 
a  full  description  of  the  property  to  be  taken  and 
the  estimated  special  assessment  on  each  lot  in  the 
entire  park  district,  is  formally  served  by  publica- 
tion on  all  owners  whose  property  is  affected  either 
by  being  taken  or  by  being  assessed  to  pay  for 
the  improvement.  If  the  owners  of  25  per  cent 
of  the  area  thus  affected  object,  in  writing,  to 
the  report,  the  project  may  be  defeated  for  at 
least  a  year.  Upon  the  certification  to  the  city 
council  by  the  board  of  park  commissioners  that 
the  objections  are  insufficient  in  number,  the 
council  proceeds  to  pass  the  ordinance  of  condem- 
nation. The  ordinance  of  council  has  been  held 
to  be  a  finding  of  fact  conclusive  on  every  other 
tribunal  that  the  land  is  acquired  for  a  public 


74 


DISTRIBUTION    OF   THE    COST 

purpose  and  that  the  protests  of  land  owners  are 
insuificient.* 

It  is  noteworthy  that  the  park  commissioners 
are  the  judges  of  the  amount  of  assessment  to  be 
levied  against  each  parcel  of  property.  No  as- 
sessment in  excess  of  those  fixed  in  the  preliminary 
report  can  be  levied,  and  if  the  estimate  of  cost 
proves  too  low  the  difference  must  be  assumed 
by  the  city  or  the  project  abandoned.  After  the 
petition  for  the  land  taking  is  in  court,  three 
appraisers  are  appointed,  corresponding  to  the 
jury  of  six  in  Kansas  City,  except  that  their  duty 
is  merely  to  appraise  the  damages  caused  by  the 
taking.  Their  report  is  reviewed  by  the  court, 
which  may  modify  their  awards  for  damages  and 
at  the  same  time  may  declare  inequitable  the 
rule  of  assessments  as  fixed  by  the  park  com- 
mission. 

Instead  of  issuing  park  certificates  as  in  Kansas 
City,  the  park  commissioners  in  Denver  are  au- 
thorized to  issue  bonds  for  the  cost  of  land.  The 
cost  of  construction  is  met  by  appropriations  from 
the  park  fund,  and  in  Denver  the  proceeds  of  tax- 
ation for  park  purposes  in  one  district  may  be 
used  in  any  other;  which  again  is  unlike  the  rule 
in  Kansas  City,  where  the  funds  of  each  district 
are  kept  separate  for  that  district's  needs. f 

In  19 II   Denver  finished  the  condemnation  of 

*  Londoner  vs.  City  and  County  of  Denver,  decided  November 
22,  191 1. 

t  Denver  Municipal  Facts,  1911,  Vol.  23,  p.  14. 
75 


CARRYING   OUT   THE   CITY    PLAN 

land  for  the  completion  of  its  park  system.  All 
the  land  included  in  the  petition  lies  in  the  East 
Denver  Park  District,  and  consists  of  park  areas, 
playgrounds,  parkways  and  boulevards,  and  a 
civic  center  site.  In  August,  1909,  the  board  of 
park  commissioners  reported  an  estimated  cost 
of  land  for  the  whole  project  of  J2, 780,000,  and 
assessed  this  entire  amount  over  the  East  Denver 
Park  District.  The  district  was  for  this  purpose 
subdivided  into  38  parts,  each  assessed  a  varying 
amount  depending  on  its  distance  from  the  various 
improvements,  the  unit  of  assessment  being  a 
standard  Denver  lot  of  25  feet  by  125  feet.  For 
instance.  District  No.  i,  being  the  nearest  to  the 
civic  center  site,  was  assessed  a  maximum  of  fe6 
each  year  for  ten  years  on  some  lots,  and  from  this 
amount  the  sums  varied  down  to  ^10  a  year  for 
ten  years  on  lots  least  benefited.  In  District  No. 
36,  on  the  other  hand,  which  is  most  remote  from 
any  of  the  proposed  improvements,  the  average 
assessment  was  30  cents  a  lot  each  year  for  ten 
years.*  The  first  instalment  of  the  assessment 
was  made  payable  five  years  after  the  passage  of 
the  assessing  ordinance.  On  November  23,  1909, 
the  park  commissioners  certified  to  the  city  coun- 
cil that  protests  of  the  property  owners  were  in- 
sufficient, and  on  December  23  the  council  passed 
the  ordinance  of  condemnation.  Meantime  an  ac- 
tion had  been  brought  in  the  district  court  to  re- 
strain the  city  council  from  passing  the  ordinance 

*  Op.  cit.  Issue  of  March  1 1,  191 1,  p.  8. 

76 


DISTRIBUTION    OF   THE   COST 

on  the  ground  that  the  charter  provisions  under 
which  the  land  for  park  purposes  was  acquired 
were  unconstitutional,  and  further,  that  the  com- 
missioners' apportionment  of  the  cost  was  in- 
equitable. The  city  demurred  to  this  action  and 
the  demurrer  was  sustained  in  the  district  court, 
from  which  decision  the  property  owners  appealed 
to  the  supreme  court  of  the  state.  In  November, 
19 10,  appraisers  were  appointed  by  the  district 
court,  and  on  March  2,  191 1,  they  made  their  re- 
port, estimating  the  total  damages  for  the  acqui- 
sition for  lands  in  the  East  Park  District  at 
$2,523,463.  Of  this  sum  $1,814,539  was  for  the 
civic  center  site. 

Considering  the  size  of  the  undertaking,  there 
were  very  few  protesting  owners  and  those  for 
the  most  part  owners  of  property  involved  in  the 
taking  for  the  civic  center.  Out  of  a  total  of  50 
owners  whose  lands  were  taken  for  any  of  the  pur- 
poses set  forth  in  the  council's  ordinances,  only 
18,  representing  $527,428,  protested  against  the 
awards  and  one  of  these  alone  represented  $265,- 
000.  In  May,  1911,  the  first  protest  was  heard 
by  a  common  law  jury,  which  found  against  the 
petitioner.  All  the  other  protesting  owners  then 
withdrew  their  petitions.  In  November,  1911, 
the  state  supreme  court  sustained  the  decision 
of  the  lower  court  above  referred  to*  and  on  March 
2,  19 1 2,  "civic  center  bonds"  for  $2,696,600, 
which  amount  included  the  cost  of  appraisement, 

*  Londoner  vs.  City  and  County  of  Denver. 
77 


1 


CARRYING   OUT   THE    CITY    PLAN 

the  cost  of  survey,  and  other  incidentals,  were 
oflfered  for  sale. 

In  spite  of  the  bitterness  of  opposition  from 

some  interested  land  owners,  the  time  from  the 

initiation  of  the  proceedings  to  the  advertising  of 

the  bond  issue  was  short,  but  this  was  not  so  much 

because  of  the  simplicity  of  the  procedure,  which 

suffers  in  this  respect  by  comparison  with  that  in 

;i  Kansas  City,  as  because  the  civic  center  project 

t  and  the  plans  for  the  completion  of  the  park  sys- 

:tem  had  the  backing  of  public  opinion  and  of  the 

'''strongest  organization  in  the  city  of  Denver. 

Indianapolis.  The  most  recent  park  law 
which  provides  for  payment  of  land  acquirement 
by  the  special  assessment  method  was  passed 
by  the  legislature  of  Indiana  in  191 1  for  cities  of 
100,000  or  over.  Under  the  provisions  of  this 
act  the  entire  area  of  Indianapolis  is  divided  into 
four  districts  administered  by  a  commission  of 
four  appointed  by  the  mayor.  Only  such  features 
of  practice  as  are  peculiar  to  Indiana  are  here 
noted. 

The  park  commissioners  have  the  duties  which 
in  Kansas  City  were  given  to  a  jury  of  six  and  in 
Denver  to  three  appraisers.  Without  action  on 
the  part  of  the  city  council  the  board  of  park 
commissioners  may  adopt  a  resolution  for  the 
condemnation  of  land  and  the  assessment  of  its 
cost  on  private  property.*  Opportunity  is  given 
to  land  owners  to  defeat  the  undertaking  by  the 

*  Acts  of  Indiana,  191 1,  Chapter  231. 

78 


DISTRIBUTION    OF   THE    COST 

written  remonstrance  of  a  majority  of  the  resident 
land  owners  in  the  proposed  benefit  district.* 
If  the  commissioners  find  the  protest  insufficient 
they  prepare  a  roll  in  which  are  included  the  es- 
timated damages  for  land  taking,  the  estimated 
cost  of  construction,  and  other  miscellaneous 
items.  To  this  amount  5  per  cent  is  added  to 
cover  any  delinquency  in  the  collection  of  assess- 
ment. This  entire  amount  is  then  spread  as  a 
special  assessment  over  the  area  which  in  the 
judgment  of  the  park  commissioners  is  specially 
benefited  by  the  improvement.  This  may  be  an 
entire  park  district  or  may  be  limited  to  a  few 
blocks.  The  act  provides  that  no  assessment  of 
benefits  may  be  made  in  excess  of  1 5  per  cent  of 
the  value  of  the  land  so  assessed,  exclusive  of  the 
improvement  conferred  upon  it.f  The  roll  must 
show  in  separate  amounts  the  damages  awarded 
and  the  benefits  assessed  in  the  case  of  each  parcel 
of  land. 

After  the  roll  is  made  up,  a  notice  describing  the 
location  of  the  lands  appropriated,  the  character 
of  the  improvement,  and  the  boundaries  of  the 
district  to  be  assessed,  is  published  once  a  week  for 
two  weeks  in  some  daily  newspaper.  This  notice 
also  names  a  day,  not  earlier  than  ten  days  after 
the  date  of  the  last  publication,  for  hearing  re- 
monstrants, and  states  that  the  assessment  roll  with 

*  Ibid.,  Chapter  231,  Section  14.  Parts  of  the  text  are  given  in 
Appendix,  p.  254. 

t  Acts  of  Indiana,  191 1,  Chapter  231,  Section  17. 

79 


CARRYING   OUT   THE    CITY    PLAN 

the  names  of  the  owners  to  whom  damages  have 
been  awarded  and  against  whom  assessments  have 
been  made  is  on  file  in  the  office  of  the  board  of 
park  commissioners.  A  written  notice  is  served 
upon  the  owner  of  each  piece  of  land  which  is 
taken  or  damaged  and  a  notice  is  mailed  to  the 
persons  against  whom  assessments  have  been 
made. 

After  the  hearing,  the  assessment  roll  is  con- 
firmed with  or  without  changes  by  the  park  board, 
and  aggrieved  owners  then  have  fifteen  days  to 
perfect  an  appeal  to  the  superior  court.  This  is 
the  first  important  difference  between  the  pro- 
cedure in  Indianapolis  and  that  in  Kansas  City 
and  Denver,  and  is  one  of  the  reasons  for  its  ex- 
traordinary effectiveness.  Land  taking  in  Kansas 
City  and  Denver  is  from  the  start  a  court  proceed- 
ing, but  in  Indianapolis  the  details  of  procedure, 
such  as  the  making  up  of  the  award  of  damages 
and  the  spreading  of  the  special  assessments,  are 
almost  entirely  taken  care  of  by  the  clerical  force 
connected  with  the  board  of  commissioners. 
Only  rarely  is  a  judicial  tribunal  called  upon  to 
exercise  jurisdiction.  Even  in  appeal  cases  the 
jurisdiction  of  the  superior  court  is  limited.*  It 
may  decide  whether  the  park  board  has  properly 
taken  jurisdiction  by  the  observance  of  the  for- 
malities imposed  in  the  act ;  it  may  review  awards 
of  damages  and  assessments  for  benefits ;  but  there 
is  no  appeal  from  the  finding  of  the  park  com- 

*  Acts  of  191 1,  Chapter  231,  Section  19. 
80 


DISTRIBUTION    OF   THE   COST 

missioners  that  it  is  necessary  to  take  private  land, 
and  that  it  is  necessary  to  take  the  particular 
land  included  in  their  resolution. 

Owners  of  land  which  is  taken  or  which  is  as- 
sessed for  benefit  have  no  constitutional  or  statu- 
tory right  in  Indiana  to  have  their  damages  or 
their  assessments  fixed  by  a  common  law  jury, 
but  in  its  discretion  the  superior  court  in  appeal 
cases  may  appoint  a  small  board  of  appraisers  to 
pass  upon  the  evidence.  This  is  the  second  ad- 
vantage in  procedure. 

Finally,  in  Indiana  the  superior  court  is  a  court 
of  last  resort  in  condemnation  cases  under  the 
park  act.  By  the  terms  of  the  act  the  judgment 
of  the  superior  court  can  not  be  appealed  from,* 
and  there  is  no  other  legal  process  in  the  state  by 
which  a  case  can  be  reviewed  by  a  higher  tribunal. 
The  court  of  appeals  said  in  the  case  of  City  of 
Indianapolis  vs.  L.  C.  Thompson  Manufacturing 
Co.,  40  Ind.  App.,  535: 

"  In  this  state  since  the  adoption  of  the  code  of  1852, 
the  use  of  the  right  of  certiorari  has  not  been  authorized 
and  the  only  procedure  by  which  the  judgment  of  a 
lower  court  may  be  reviewed  by  the  court  is  by  way 
of  appeal  ....  Judgment,  in  a  proceeding 
where  the  right  of  appeal  is  specifically  denied  by  the 
legislature  is  not  reviewable  by  the  supreme  court  or 
this  court.  .  .  .  Whether  the  lower  court  com- 
mitted error  in  the  measurement  of  damages,  the  ad- 
mission of  testimony  in  assuming  jurisdiction  over  the 

*  Acts  of  191 1,  Chapter  231,  Section  20. 
7  81 


CARRYING   OUT   THE    CITY    PLAN 

person  or  subject  matter,  or  in  any  other  matter,  is  not 
subject  to  our  review  on  appeal.  .  .  .  There  is 
no  vested  right  in  an  appeal  and  the  legislature  has  the 
power  to  grant  or  deny  appeals  as  it  deems  best/' 

Besides  possessing  the  advantages  in  legal 
procedure  which  eliminate  the  usual  delay  and 
expense  in  land  taking,  the  Indianapolis  park  com- 
mission has  adopted  a  businesslike  practice  which 
is  most  helpful  in  arriving  at  awards  and  which 
appeals  to  the  sense  of  fairness  of  the  land  owner. 
A  complete  card  catalogue  of  owners  and  valua- 
tions is  kept  in  the  office  of  the  commission,  and 
in  the  case  of  every  taking  the  commission  has  the 
assistance  of  real  estate  experts  as  an  advisory  com- 
mittee on  valuations. 

Although  the  act  is  only  three  years  old,  there 
has  been  at  least  one  considerable  taking  in  each 
district.  In  the  North  Park  District  there  have 
been  two,  one  involving  an  expense  of  $154,420 
and  the  other  ? 1 3 1 ,662.  In  takings  involving  over 
$600,000  worth  of  property  and  several  thousand 
owners,  there  have  been  only  four  appeals  from 
the  findings  of  the  park  board,  two  of  which  have 
been  decided  by  the  superior  court.  In  one  an 
award  of  damages  of  $10,000  was  increased  to 
$17,000  and  in  the  other  an  award  of  $6,925  was 
increased  to  $9,800.  In  one  proceeding  1,600 
owners  were  involved  and  only  50  were  present 
at  the  hearing  of  remonstrants. 

All  these  advantages  contribute  to  excellent 
results  under  the  park  act,  but  a  factor  which  is 

82 


DISTRIBUTION    OF   THE   COST 

quite  as  positive  in  its  influence  is  the  effect  on 
the  community  of  distributing  the  cost  of  land 
acquirement  by  levying  it  as  a  special  assessment 
entirely  on  the  district  specially  benefited.  Peti- 
tions either  to  have  damages  for  land  takings  in- 
creased or  to  have  assessments  decreased  are  not 
popular  when  the  bill  is  to  be  paid  not  out  of  the 
returns  from  the  general  tax  but  out  of  the  pock- 
ets of  the  petitioners'  neighbors. 

The  combination  of  a  simplified  legal  procedure, 
a  wise  business  practice,  and  an  equitable  method 
of  distributing  the  cost  of  an  improvement  has 
made  it  possible  for  the  city  of  Indianapolis  to 
take  land  needed  for  public  use  at  a  fair  price  and 
with  little  delay.  The  park  board  is,  however, 
limited  in  its  activities  by  the  terms  of  the  act 
which  provide  that  the  aggregate  amount  of  bene- 
fits which  may  be  assessed  against  property  in  a 
ten-year  period  can  not  exceed  ?  1,250,000,  and 
that  in  any  one  year  it  can  not  exceed  $200,000. 

5.    SPECIAL  ASSESSMENTS  IN  ACQUIRING  LAND  FOR 
STREET   PURPOSES 

The  right  to  levy  a  special  assessment  for  such 
street  improvements  as  do  not  involve  the  taking 
of  land,  such  as  grading,  paving,  curbing,  and  side- 
walk construction,  is  almost  universally  granted 
to  municipalities  by  legislation  in  the  United 
States.  But  the  use  of  the  special  assessment, 
although  common  in  New  York,  New  Jersey, 
Pennsylvania,  and  the  central  and  western  states, 

83 


CARRYING   OUT   THE   CITY    PLAN 

is  most  limited  in  the  cities  of  the  South  and  in 
New  England.  It  is  practically  unknown  in  New 
Hampshire;  and  in  the  other  New  England  states 
only  the  cost  or  a  portion  of  the  cost  of  some 
one  improvement,  very  often  the  construction  of 
sewers,  is  assessed  specially  on  private  property. 
There  is,  to  be  sure,  in  Massachusetts,  a  rather 
general  practice  of  accepting  streets  as  public 
highways  only  after  they  have  been  brought  by 
the  abutters  to  an  established  grade. 

Speaking  generally,  in  street  improvements 
which  require  the  taking  of  land,  as  in  openings, 
widenings,  or  extensions,  more  often  than  in  tak- 
ings for  parks,  the  cost  of  the  land  is  defrayed  by  a 
special  assessment.  The  practice  in  this  regard 
is  likely  to  follow  the  practice  in  defraying  merely 
construction  cost.  We  have  already  seen  that 
the  cities  of  Ohio  are  prohibited  from  employing 
such  assessment;  in  other  cities,  of  which  Phila- 
delphia and  Boston  are  the  best  examples,  al- 
though the  right  to  levy  a  special  assessment  is 
given  to  the  municipality,  in  practice  little  if  any 
of  the  cost  of  land  taking  gets  assessed,  because 
in  Philadelphia  juries  are  averse  to  finding  a  bene- 
fit, and  in  Boston  the  right  to  assess  specially  is 
limited  and  the  procedure  ineffective.  Where 
assessments  are  made,  the  practice  is  as  varied  as 
in  assessments  for  the  acquisition  of  land  for  parks. 

Agency  which  Assesses  the  Benefits.  Ordi- 
narily the   same  agency  which  awards  damages 

84 


DISTRIBUTION    OF   THE    COST 

for  land  taking  determines  the  amount  of  the 
special  assessment  which  is  to  be  levied  for  the 
special  benefit  resulting  from  the  improvement, 
whether  that  agency  be  a  small  board  of  appraisers, 
commissioners,  or  viewers,  as  in  New  York, 
Chicago,  St.  Louis,  Kansas  City,  Portland  (Ore- 
gon), and  other  cities;  or  a  department  of  the 
city  administration,  as  in  Milwaukee,  Indianapolis, 
Los  Angeles,  and  Boston.  The  usual  practice  is 
to  assess  the  benefits  at  the  same  time  that  the 
damages  are  awarded  and  thus  offset  the  benefits 
against  the  damages  wherever  possible.  In  cases 
where  the  damages  awarded  are  increased  or  as- 
sessments are  decreased  on  appeal,  either  the  city 
must  assume  the  deficiency  or  the  assessing  board 
must  find  more  benefited  territory  on  which  to 
spread  the  required  amount. 

The  street  commissioners  of  Boston,  however, 
and  boards  with  like  powers  in  the  other  cities  of 
Massachusetts,  are  compelled  by  statute  to  post- 
pone the  assessment  of  benefit  until  the  completion 
of  the  improvement,*  a  practice  the  disadvantage 
of  which  is  evidenced  by  the  difficulty  in  collecting 
the  assessments,  as  will  be  seen  later. 

In  Seattle  and  other  cities  of  Washington,  the 
special  assessments  are  apportioned  by  eminent 
domain  assessors,  a  different  tribunal  from  that 
which  awards  damages. f    Sometimes  a  year  elap- 

*  Acts  of  Massachusetts,  1906,  Chapter  393;  and  Revised  Laws, 
Chapter  50,  Section  i. 

t  Acts  of  Washington,  1907,  Chapter  153,  Section  20. 

85 


CARRYING   OUT   THE    CITY    PLAN 

ses  from  the  time  of  the  final  award  for  dam- 
ages to  the  appointment  of  assessors,  and  during 
this  year  the  amounts  of  the  award  are  bearing 
interest.  The  eminent  domain  assessors  review 
the  same  evidence  that  was  heard  by  the  jury  in 
the  land  damage  cases.  An  amendment  has  al- 
ready been  proposed  which  will  allow  the  board  of 
eminent  domain  assessors  to  award  damages  and 
apportion  assessments  at  one  hearing. 

The  Proportion  Assessed.  It  is  the  general 
practice  to  leave  the  proportion  of  the  cost  of 
land  which  is  to  be  assessed  on  the  municipality 
and  the  proportion  which  is  to  be  assessed  on 
property  specially  benefited  to  the  discretion  of 
the  board  which  levies  the  assessment,  limited 
only  by  the  provision  that  the  special  assessment 
shall  not  exceed  special  benefit  and  shall  not 
exceed  a  certain  percentage  of  valuation  of  the 
property  assessed.  But  in  New  York  the  board 
of  estimate  and  apportionment  is  given  this  duty 
in  all  cases,*  and  in  Bostonf  the  proportion  which 
private  property  shall  pay  is  fixed  by  law,  not  to 
exceed  50  per  cent  of  the  cost  of  improvement,! 
which  cost  includes  both  the  amount  awarded  for 
land  damage  and  the  cost  of  construction.  Theo- 
retically, the  proportion  assessed  on  the  muni- 
cipality at  large  and  on  private  property  should 
depend  on  the  extent  to  which  the  improvement, 

*  Charter  of  New  York  City,  1901,  Article  950. 
t  Acts  of  Massachusetts,  1906,  Chapter  393,  Section  5. 
X  Changed  by  Chapter  536,  Acts  of  1913. 
86 


DISTRIBUTION    OF  THE   COST 

as,  for  instance,  the  widening  or  opening  of  a 
street,  serves  a  general  or  a  purely  local  purpose. 
Practice  does  not  follow  theory.  Some  jurisdic- 
tions assess  specially  the  whole  or  a  large  portion 
of  the  cost  of  all  ordinary  street  openings  on  the 
property  particularly  benefited.  In  Milwaukee  it 
is  the  unwritten  rule  to  assess  two-thirds  of  the 
cost  on  private  property.  In  Kansas  City  it  is  the 
exception  for  the  city  to  pay  any  part  of  the  cost 
of  street  improvement  out  of  its  general  revenue. 

The  history  of  special  assessments  for  street 
purposes  in  New  York  and  Boston  furnishes  an 
interesting  comparison.  Previous  to  1902  the 
policy  of  the  board  of  estimate  and  apportion- 
ment in  New  York  City  was  to  assess  the  entire 
cost  of  opening  proceedings  on  the  property 
specially  benefited,  and  subsequently  to  grant  re- 
lief, depending  usually  on  the  skill  with  which 
property  owners  were  represented  at  the  hearing. 
The  result  was  that  almost  all  the  expense  of 
opening  streets  over  50  feet  wide  was  borne  by  the 
city.*  The  city's  bonded  indebtedness  was  greatly 
increased  and  it  became  impossible  to  execute  im- 
portant improvements. 

From  1902  to  1907  the  opening  and  widening 
of  streets  60  feet  wide  and  under  was  regarded 
as  a  purely  local  benefit  and  the  entire  cost  as- 
sessed on  property  benefited;  but  for  streets  over 
60  feet  in  widthf  there  was  a  different  distribu- 

*  Report  of  Chief  Engineer,   Board  of  Estimate  and  Apportion- 
ment, October  19,  1907,  p.  3. 
t  Ibid.,  p.  14. 

87 


CARRYING   OUT  THE    CITY    PLAN 

tion  of  cost.  In  the  case  of  new  streets  the  city 
assumed  one-third  of  the  cost  due  to  the  excess  in 
width  over  60  feet.  Where  the  streets  were  old 
and  were  widened  to  over  60  feet,  the  city  assumed 
one-half  of  the  cost  due  to  the  excess  width. 
During  these  years  the  city  was  called  upon  for 
a  contribution  of  ^,471,550  toward  the  cost  of 
widening  and  opening  streets,  which  put  upon  the 
city  a  greater  burden  than  the  old  method  where 
assessments  were  reduced  on  a  plea  for  relief. 
The  board  of  estimate  and  apportionment  found 
also  that  this  method  was  inequitable  to  the 
owners  of  land  abutting  on  the  60-foot  street.  A 
street  over  60  feet  in  width  was  held  to  be  of  more 
general  benefit  than  one  of  narrower  width,  and 
the  area  over  which  the  assessment  could  be  spread 
was  bounded  by  a  line  midway  between  the  wid- 
ened street  and  the  nearest  street  of  the  same  or 
greater  width.  Thus  in  widening  a  street  to  80 
feet,  after  the  payment  out  of  the  general  muni- 
cipal revenue  of  one-third  of  the  cost  due  to  ex- 
cess width  and  after  the  assessment  on  property 
in  the  benefit  zone  not  abutting  on  the  widened 
street,  it  was  found  that  abutting  property  was 
paying  only  the  equivalent  of  the  cost  of  a  street 
5 1  feet  wide.  For  this  reason,  therefore,  and  be- 
cause of  the  greater  burden  on  the  municipality, 
the  rule  adopted  in  1907  was  to  assess  the  entire 
cost  of  the  acquisition  of  land  for  street  purposes 
on  the  property  specially  benefited,  in  so  far  as  a 
special  benefit  could  be  established,  provided  that 

88 


DISTRIBUTION    OF   THE    COST 

the  amount  assessed  would  not  result  in  confisca- 
tion of  the  property.* 

In  Boston  previous  to  1891  special  assessments 
to  defray  the  cost  of  street  improvements  were 
levied  entirely  according  to  the  discretion  of  the 
board  of  street  commissioners,  whose  practice 
was  to  assess  private  property  only  in  the  case  of 
improvements  which  had  more  than  a  local  char- 
acter and  to  pay  for  strictly  local  street  improve- 
ments out  of  the  general  appropriation.  In  1891 
a  board  of  survey  was  created  and  that  board  in 
its  discretion  was  allowed  to  assess  on  putting 
property  the  entire  cost  of  improvement.!  In 
practice  the  board  used  this  right  only  on  purely 
local  streets,  applying  the  theory  that  on  such 
streets  the  general  public  received  no  appreciable 
benefit.  In  1902  large  land  holders  and  their 
representatives  insisted  on  changing  the  law  and 
were  helped  by  the  decision  in  Lorden  vs.  Coffey, 
178  Mass.  489,  which  declared  unconstitutional 
that  part  of  the  board  of  survey  act  which  al- 
lowed the  assessment  of  the  entire  cost  of  improve- 
ments, holding  that  a  special  assessment  might 
exceed  the  special  benefit  to  property  under  the 
provision  of  the  act.  There  was  no  finding  that 
the  entire  cost  could  not  be  assessed  on  a  bene- 
fited area,  and  had  the  board  of  survey  act  in- 
cluded the  words  "but  no  assessment  shall  be 

*  Report  of  Chief  Engineer,  Board  of  Estimate  and  Apportion- 
ment, October  19,  1907,  pp.  5  ff. 

t  Acts  of  Massachusetts,  1891,  Chapter  323,  Sections  14,  15. 

89 


CARRYING   OUT  THE    CITY    PLAN 

levied  in  excess  of  the  actual  special  benefit  to 
the  property"  the  law  would  probably  have  been 
declared  constitutional.  The  statute  of  1902*  lim- 
ited the  amount  of  a  special  assessment  to  50  per 
cent  of  the  cost  of  an  improvement,  no  matter 
what  the  width  or  the  use  of  a  street. 

The  evolution  in  New  York  is  toward  a  proper 
rule  of  apportionment,  and  in  Boston,  away  from 
it.  Either  the  assessing  board  should  be  given 
discretion  in  the  matter  of  assessments,  with  the 
usual  limitation  that  there  should  be  no  special 
assessment  exceeding  special  benefit,  or  a  system 
of  apportionment  should  be  adopted  based  on  the 
width  of  streets  as  evidence  of  their  character  and 
use  and  as  a  measure  of  their  public  and  private 
benefit.! 

The  Area  of  Special  Benefit.  The  deter- 
mination of  the  specially  benefited  area  is  left 
to  the  discretion  of  the  assessing  board,  with 
very  few  exceptions.  In  Philadelphia  this  area  is 
limited  to  such  properties  as  abut  on  the  im- 
provement ;  in  Boston  J  it  is  fixed  by  the  statute 
of  1902  to  125  feet  on  either  side  of  the  improve- 
ment;! iri  Milwaukee  it  is  limited  in  practice  to 
1,000  feet  on  either  side  of  the  improvement. 
Under  the  boulevard  law  in  St.  Louis  only  the 

*  Acts  of  Massachusetts,  1902,  Chapter  521,  Section  14. 

t  Acts  of  Massachusetts,  19 13,  Chapter  536,  gives  the  street  com- 
missioners discretion  and  removes  the  limit  of  50  per  cent. 

t  Acts  of  Massachusetts,  1902,  Chapter  521,  Section  i. 

§This  restriction  was  removed  by  Acts  of  Massachusetts,  1913, 
Chapter  536. 

90 


DISTRIBUTION    OF   THE    COST 

properties  abutting  on  boulevards  can  be  assessed 
specially  for  their  cost.*  The  improvement 
known  as  the  "King's  Highway''  was  assessed 
under  this  law  with  the  result  that  the  city  would 
have  had  to  pay  80  per  cent  of  the  total  cost  of 
improvement,  and  was  forced  either  to  abandon 
it  or  to  repeal  the  law.  Subsequently  the  King's 
Highway  was  opened  as  an  ordinary  street  with 
the  same  assessment  provision  as  in  street  open- 
ings, which  leaves  the  benefit  area  to  the  discre- 
tion of  the  commissioners. 

Though  it  may  be  generally  stated  that  the 
size  of  the  benefit  district  and  the  amount  of  the 
special  assessment  levied  are  both  legislative 
questions  which  are  finally  determined  by  the 
body  to  which  is  delegated  this  duty,  and  that  in 
the  absence  of  special  constitutional  limitation 
the  legislative  finding  will  not  be  reviewed  by  a 
court  unless  there  is  evidence  of  gross  error  or 
fraud,  judicial  decisions  in  several  states  have  held 
that  this  legislative  authority  is  not  unlimited. 
Courts  on  appeal  have  asserted  the  right  to  re- 
view the  apportionment  of  the  assessment  and 
declare  it  invalid. 

(i)  Where  the  benefit  of  an  improvement  is 
entirely  general:  Hammett  vs.  Philadelphia,  65  Pa. 
St.  146;  Thomases.  Gain,  35  Mich.  155;  Detroit 
vs.  Daly,  68  Mich.  503. 

(2)  Where  the  rule  of  assessment  would  be  in- 
equitable for  any  reason:    In  re  Washington  Av. 

*  Charter  of  St.  Louis,  1901,  Act  VI,  Section  i. 
91 


CARRYING   OUT  THE    CITY    PLAN 

69  Pa.  St.  352;  Scranton  vs.  Pa.  Coal  Co.  105  Pa. 
St.  445;  Chicago  vs.  Learned,  34  111.  203;  White 
vs.  Gove,  183  Mass.  333. 

(3)  Where  the  special  assessment  exceeds  the 
special  benefit:  Seely  z;5.  Pittsburgh,  82  Pa.  St.  360; 
Lorden  vs.  Coffey,  178  Mass.  489;  Norwood  vs. 
Baker,  172  U.  S.  269. 

THE    RELATION    OF    SPECIAL    ASSESSMENTS    TO 
AWARDS  FOR  LAND  TAKINGS 

In  our  review  of  the  practice  in  special  assess- 
ments we  have  seen  that  in  some  jurisdictions  the 
determination  of  awards  for  land  takings  and  the 
apportionment  of  the  special  assessment  are  dis- 
tinct functions  performed  either  by  the  same  body 
or  by  different  bodies  at  times  which  may  be  widely 
separated.  Thus  in  Denver  the  park  commission- 
ers spread  the  assessment  which  is  based  on  their 
estimate  of  the  land  cost  before  the  appraisers 
who  determine  the  land  awards  are  appointed; 
in  Boston  the  street  commissioners  have  both 
functions,  but  assessments  can  not  be  levied  until 
the  completion  of  the  improvement.  In  Seattle 
three  assessors,  or  three  eminent  domain  com- 
missioners, levy  the  special  assessment  at  least  a 
year  from  the  time  when  the  jury's  awards  for 
land  takings  have  been  finally  confirmed;  under 
the  Minneapolis  park  procedure  assessors  are  not 
appointed  by  the  court  until  the  cost  of  land  is 
finally  determined  by  confirmation  of  the  ap- 
praisers' report.     In  other  jurisdictions  both  the 

92 


DISTRIBUTION    OF   THE    COST 

awards  for  land  and  the  assessment  for  its  cost  are 
functions  performed  in  the  same  proceeding  by 
the  same  body.  Thus  in  Kansas  City  a  jury  of 
six,  and  in  Indianapolis  commissioners,  have  these 
duties. 

The  disadvantage  of  deferring  the  time  of  levy-, 
ing  the  assessment  is  generally  considered  to  out- 
weigh the  advantage  of  a  more  certain  knowledge 
of  the  amount  of  the  land  awards,  which  is  the 
largest  item  of  the  cost  to  be  assessed.  But  the 
necessity  of  keeping  separate  the  items  of  awards 
for  damages  and  of  assessment  for  special  benefit, 
though  they  may  be  best  fixed  at  the  same  time, 
appears  from  the  methods  in  very  general  use  of 
offsetting  benefits  against  damages  in  arriving  at 
verdicts  in  condemnation  cases. 

In  Pennsylvania  the  jury  in  condemnation  cases 
must  find: 

1 .  The  value  of  the  premises  before  the  taking. 

2.  The  value  of  the  premises  after  the  taking,  which 
includes  the  benefit  to  the  premises  by  the  taking.  The 
difference  is  the  compensation  to  the  owner. 

In  Portland,  Oregon,  a  verdict  is  made  up  of: 

1 .  How  much,  if  any,  less  valuable  the  land  will  be 
rendered  by  the  taking. 

2.  The  damage  to  the  improvements;  that  is,  to 
buildings,  and  so  forth. 

Both  of  these  rules  of  damage  are  open  to  either 
of  two  objections:    First,  in  some  jurisdictions 

93 


CARRYING   OUT   THE    CITY    PLAN 

juries  are  averse  to  finding  any  benefit,  in  which 
case  a  much  greater  sum  than  is  just  is  spread  over 
a  benefit  district,  and  owners  who  have  justly 
received  as  damages  large  sums  for  land  taken 
or  damaged  pay  entirely  inadequate  assessments 
for  the  special  benefit  which  they  have  received. 
Second,  if  the  jury  gives  full  consideration  to  the 
benefit  which  a  piece  of  property  receives  and  sub- 
tracts the  full  amount  of  benefit  from  the  compen- 
sation awarded  for  damages  to  the  property,  the 
owner  has  a  decided  grievance  because  he  may  be 
paying  Jioo  for  one  hundred  dollars'  worth  of 
special  benefit,  but  his  neighbor  on  the  other  side 
of  the  street  whose  property  has  not  been  taken 
is  paying  in  a  special  assessment  only  25  per  cent 
or  30  per  cent  of  the  special  benefit  to  his  prop- 
erty. 

The  commissioners  appointed  in  street  cases  in 
Minneapolis  are  directed  to  find: 

1.  The  value  of  land  taken. 

2.  The  damage  to  the  land  or  buildings  not  taken. 

3.  The  special  benefit  which  accrues  to  each  parcel. 

The  owner  of  the  property  receives  as  compen- 
sation the  excess  of  compensation  for  damages 
over  the  special  benefit.  This  rule  is  open  to  the 
second  objection  which  we  have  discussed  above 
and  only  in  a  less  degree  is  the  code  of  California 
objectionable  which  requires  the  finding  of: 

1.  The  value  of  the  land  and  buildings  taken. 

2.  The  damage  to  the  land  and  buildings  not  taken. 

94 


DISTRIBUTION    OF   THE   COST 

3.  The  benefit  to  the  remainder,  which  must  be 
deducted  from  (2). 

Thus  in  California  the  owner  of  property  taken 
will  have  as  damages  at  least  the  value  of  the 
land  taken,  whereas  in  the  Minneapolis  street 
procedure  it  is  conceivable  that  the  owner  might 
not  receive  as  compensation  the  value  of  the  land 
taken. 

The  better  rule  in  these  cases  is  illustrated  by 
the  Kansas  City  procedure  where  the  jury  must 
find: 

1.  The  actual  value  of  land  or  easement  taken. 

2.  The  actual  damage  to  land  or  buildings  remaining. 

3.  The  assessment  which  is  to  be  levied  against  the 
city  at  large. 

4.  Special  assessment  against  each  parcel  of  land 
found  specially  benefited. 

Only  this  special  assessment  (4)  may  be  de- 
ducted from  the  owner's  compensation  for  dam- 
age (i)  and  (2). 

THE  EFFICACY  OF  SPECIAL  ASSESSMENTS 
It  is  clear  that  the  value  of  the  special  assess- 
ment method  differs  considerably  in  different  com- 
munities and  depends  greatly  on  local  conditions. 
The  land  owners  of  Kansas  City  and  Denver  pay 
special  assessments  practically  without  litigation, 
and  as  a  general  rule,  in  most  cities,  collection  of 

95 


CARRYING   OUT   THE   CITY    PLAN 

assessments  is  attended  with  little  difficulty,  even 
where  the  burden  is  heaviest  on  the  land  owner. 

The  process  of  collection  in  New  York  City,  for 
instance,  is  very  effective.  Like  most  cities  where 
the  cost  of  street  improvement  is  assessed  wholly  or 
in  part  on  property  specially  benefited,  the  owners 
of  the  land  assessed  may  pay  the  entire  assessment 
at  once  or  in  annual  instalments.  On  the  failure 
in  payment  of  any  instalment,  the  land  becomes 
charged  with  the  city's  lien.  For  three  years  the 
owner  may  pay  interest  on  the  amount  he  owes 
the  city,  but  at  the  end  of  this  period  the  city's 
lien  for  all  charges  against  the  land  is  sold  at  auc- 
tion to  the  person  who  bids  the  lowest  rate  of 
interest  for  which  he  will  pay  the  face  value  of  the 
lien  and  carry  it  three  years  more.  Thus  the  city 
gets  its  money  and  the  land  owner  merely  has,  in 
addition  to  the  face  of  his  assessment,  an  interest 
charge  which  is  apt  to  be  ridiculously  low  since 
the  bidding  in  on  city  liens  is  usually  active. 

Boston  is  one  of  the  few  exceptions  to  the  rule 
in  the  collection  of  special  assessments.  Prop- 
erty owners  contest  special  assessments  wherever 
a  contest  is  made  worth  while  by  the  size  of  the 
special  assessment,  and  reductions  in  assessments 
by  juries  on  appeal  go  far  to  destroy  the  effective- 
ness of  this  method  as  a  means  of  providing  funds 
for  the  acquisition  of  land ;  and  yet  land  owners  in 
Boston  are  treated  much  more  leniently  under  the 
law  of  1906  than  they  are  in  New  York,  Kansas 
City,  Denver,  or  Indianapolis.     One  explanation 

96 


DISTRIBUTION   OF   THE   COST 

of  the  unpopularity  of  the  special  assessment 
principle  is  that  the  funds  used  for  improving  the 
old  city  and  opening  and  widening  the  streets 
were  taken  out  of  the  general  appropriation,  and 
property  owners,  therefore,  in  the  newer  sections, 
or  property  owners  in  older  sections  where  openings 
and  widenings  are  necessary,  are  opposed  to  any 
innovation  which  puts  on  them  a  heavier  burden. 
But  the  ineffectiveness  of  the  special  method  in 
Boston  is  due  chiefly,  first,  to  the  statutory  limi- 
tation on  the  discretion  of  the  assessing  board; 
and  second,  to  the  provision  which  postpones  the 
apportioning  of  the  assessment  until  after  the  com- 
pletion of  the  improvement. 

The  fixing  of  the  proportion  which  the  city  must 
pay  irrespective  of  the  character  of  the  street  in 
question  and  the  narrow  limitation  of  the  benefit 
area,  work  together  to  place  upon  a  very  few  own- 
ers an  altogether  disproportionate  burden.  These 
are  the  unfair  features  of  the  Boston  assessment 
law:  (a)  The  city  must  pay  50  per  cent  at  least 
of  the  cost  of  a  purely  local  street,  even  a  street 
30  feet  in  width,  the  only  direct  benefit  from 
which  is  to  abutting  properties;  (b)  the  city  in 
practice  pays  as  high  as  80  per  cent  of  the  cost  of 
such  streets,  because  in  the  opinion  of  the  com- 
missioners the  value  of  the  property  within  125 
feet  on  either  side  is  sometimes  so  low  that  to 
assess  50  per  cent  on  it  would  amount  to  confisca- 
tion ;  (c)  the  property  that  receives  the  most  bene- 
fit is  assessed  nothing,  particularly  in  the  case  of  a 

8  97 


CARRYING   OUT   THE   CITY    PLAN 

widened  thoroughfare  where  the  benefit  accrues 
certainly  no  more  to  the  abutters  than  to  the 
termini  of  the  thoroughfare,  or  to  abutters  on  the 
streets  leading  off  from  the  thoroughfare  whose 
property  has  been  made  more  accessible. 

The  time  which  is  allowed  to  elapse  between  the 
opening  or  widening  of  the  street  and  the  levying 
of  the  assessment  is  a  further  handicap  to  the 
success  of  special  assessments  in  Boston  as  to  a 
less  degree  in  Seattle.  The  chance  of  offsetting 
benefits  against  damages  is  lost,  and  consequently 
the  labor  of  collection  is  increased.  Property 
owners  who  get  their  damages  for  land  taken, 
alienate  the  property,  and  the  owner  not  a  party 
to  the  condemnation  proceedings  who  has  paid 
to  his  predecessor  in  title  an  increased  price  on 
account  of  the  improvement  to  the  property,  nat- 
urally opposes  payment  of  a  special  assessment. 
That  most  of  the  action  under  the  law  is  a  per- 
version of  the  special  assessment  principle  has  been 
recognized  in  recent  Massachusetts  special  legis- 
lation, where  the  limitation  on  the  assessment 
area  has  been  removed  and  the  size  of  the  area 
left  to  the  discretion  of  the  street  commissioners.* 

A  comparison  of  the  returns  from  special  assess- 
ments in  Boston,  in  Seattle,  and  in  Minneapolis, 
may  be  made  by  means  of  the  subjoined  tables : 

*Acts  of  Massachusetts,  1913,  Chapter  536,  removes  both  limi- 
tations on  the  discretion  of  the  Boston  street  commissioners  in  the 
special  case  covered  by  the  act. 


98 


DISTRIBUTION    OF   THE    COST 


TABLE    3. — RETURNS    FROM    SPECIAL    ASSESSMENTS 
ON  STREET  IMPROVEMENTS.      BOSTON,  1895-1906 


Location  of  improve- 
ment 

Year 

Cost  of 
improve- 
ment 

Amount 
assessed 

Amount 
of  reduc- 
tion 

Amount 
paid 

Lauriat  Ave.    . 

1895 

^45»779 

$41,201 

fe4,8ii 

:^,390 

Brighton  Ave.  . 

i8q5 

201,699 

117,270 

42,506 

74,764 

Columbus  Ave. 

i8qs 

1,818,901 

373,127 

a 

a 

PeterboroSt.    . 

1896 

187,264 

95,457 

78,983 

16.474 

Queensberry  St. 

1897 

196,568 

87,565 

32.448 

55,««7 

Charlestown  St. 

1898 

696.673 

212,229 

81,830 

b 

North  Harvard  St.  . 

1898 

70,443 

23,721 

I  1,162 

12.559 

Bennington  St. 

1899 

831,816 

54,812 

c 

c 

Florida  St. 

190^ 

16,120 

4,392 

2,668 

1,724 

Columbia  Rd.  . 

1,792,891 

296,493 

13,307 
f  About 

d 
r  About 

Hyde  Park  Ave.      . 

1906 

225,000 

28,000 

50  per 
cent 

\  50  per 
[cent 

a  Fifteen  petitions  for  reduction  of  assessment  are  pending  and 
no  payments  have  been  made. 

^  Thirteen  petitions  for  reduction  of  assessments  and  two  writs 
of  certiorari  are  pending.  The  latter  question  the  validity  of  the 
assessment. 

c  Acts  of  1912,  Chapter  537,  compels  the  street  commissioners  to 
reduce  this  assessment.     See  Appendix,  p.  268.  for  the  text  of  act. 

d  Sixty  petitions  for  reduction  of  assessments  are  pending.  Acts 
of  19 12.  Chapter  339,  authorized  a  reduction  of  assessments.  See 
Appendix,  p.  267. 

There  have  been  remarkably  few  contests  on 
any  assessments  in  Minneapolis.  The  park  board 
has  been  able  to  pay  every  instalment  on  every 
certificate  as  it  matured  without  a  moment's 
delay.  All  the  assessments  are  collectible  as  a 
part  of  the  annual  tax  for  state,  county,  and  city 
purposes. 

In  Minneapolis,  Kansas  City,  and  Denver  the 
amount    collected    shrinks    but    little    from    the 

99 


CARRYING   OUT   THE    CITY    PLAN 


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DISTRIBUTION    OF   THE   COST  ^ 

TABLE    5. — RETURNS     FROM    SPECIAL    ASSESSMENTS 
ON   IMPROVEMENTS.       MINNEAPOLIS,   1889-1908 


Location  of  improvement 

Year 

Cost  of 
improve- 
ment 

Amount 
assessed 

Amount 
paid 

Glenwood  Park    . 

iSSq 

$295,825 

$100,000 

$100,000 

Van  Cleve  Park    . 

1890 

75.348 

75.000 

75.000 

Loring  Park  .... 

1890 

343.693 

105,000 

105,000 

Powderhorn  Lake  Park 

1891 

262,387 

145,099 

145.099 

Columbia  Park     . 

1892 

220,447 

213,041 

213,041 

St.  Anthony  Parkway 

1893 

150,337 

102,911 

102,911 

The  Parade   .... 

1904 

280,225 

103,127 

72,189* 

Kenwood  Park     . 

1907 

162,846 

162,187 

64,875b 

The  Gateway 

1908 

634.510 

634.510 

126,902c 

a  Three  instalments  unpaid. 

b  Six  instalments  unpaid. 

c  Eight  instalments  unpaid,  January  i,  1912. 


amount  assessed.  In  Indianapolis  and  in  Chicago 
a  five  per  cent  delinquency  is  figured  in  the  amount 
of  the  total  assessment,  so  that  the  return  ade- 
quately meets  the  cost  of  the  improvement.  In- 
dianapolis has  collected  in  the  past  three  years 
(1909  to  19 12)  by  the  assessment  method  $476,487. 
Kansas  City  has  collected  $8,724,919  in  twenty 
years. 

CONCLUSION 
Special  assessments  as  an  equitable  method  of 
distributing  the  cost  of  land  acquirement  have  the 
great  advantage  of  a  thorough  testing.  Judicial 
decisions  universally  sustain  their  legality.  Ample 
precedents  prove  their  practicability  as  financial 
expedients.     Several  cities  in  the  United  States 


lOI 


CARRYING   OUT   THE    CITY    PLAN 

are  so  completely  satisfied  with  the  results  of  an 
experience  of  from  five  to  fifteen  years  with  this 
"American  device"  that  the  suggestion  of  ex- 
perimenting with  the  European  method  of  dis- 
tributing the  cost  known  as  excess  condemnation 
meets  with  little  enthusiasm.  It  remains,  how- 
ever, to  consider  the  applicability  of  excess  con- 
demnation to  American  conditions. 


103 


CHAPTER  IV 
EXCESS  CONDEMNATION 

EXCESS  condemnation,  or  the  taking  by  a 
public  agency  under  the  power  of  eminent 
domain  of  more  land  and  property  than  are 
needed  for  the  actual  construction  of  a  contem- 
plated public  improvement  with  a  view  to  selling 
the  excess  at  such  increase  of  value  as  may  result 
from  the  improvement,  offers,  as  suggested  in  the 
last  chapter,  a  method  of  relieving  the  burden  of 
the  tax  payers  at  large,  and  it  is  this  feature  that  is 
likely  to  be  emphasized  in  any  discussion  of  the 
merits  of  the  excess  condemnation  principle;  but, 
entirely  apart  from  its  financial  aspect,  it  has  an 
importance  in  the  execution  of  plans  which  is  too 
little  considered.  We  have  seen  in  the  first  chap- 
ter that  a  serious  obstacle  to  the  realization  of 
plans  for  improvement  is  the  universal  consti- 
tutional limitation  on  the  power  of  eminent  do- 
main through  the  provision  that  land  can  not  be 
taken  unless  it  is  "necessary  for  the  public  use/'. 
The  usual  narrow  construction  of  this  phrase 
allows  a  public  agency  to  take  only  the  land  or 
rights  in  land  required  for  the  actual  use  of  the 
public.  When  a  comprehensive  plan  of  recon- 
struction involves  the  widening  of  a  built-up  street 
or  the  opening  of  a  new  street  cutting  through  im- 

103 


r--' 


CARRYING   OUT  THE    CITY    PLAN 

proved  property,  the  municipality  is  allowed  to 
take  just  enough  land  for  the  actual  construction 
of  the  street  irrespective  of  the  size  or  shape  of 
the  lots  left  on  either  side  of  the  improvement. 

The  disadvantage  to  the  municipality  is  both 
physical  and  financial.  The  land  owner  receives 
as  compensation  both  the  value  of  land  actually 
taken  and  the  damage  to  his  remaining  land,  and 
consequently  often  gets  as  much  for  a  part  of  his 
lot  as  he  would  for  the  whole  of  it.  Even  where 
special  assessment  laws  work  efi'ectively  it  is  often 
impossible  to  show  ground  for  such  an  assessment 
against  a  remnant  that  is  distinctly  inferior  to  the 
customary  marketable  lot  in  size  or  shape.  In  the 
absence  of  any  effective  control  over  remnants 
left  by  the  construction  of  the  improvement,  the 
new  highway  is  likely  to  be  bordered  by  ugly 
vacant  lots  of  irregular  shape  and  size  which  are 
totally  unsuited  for  use  and  likely  to  remain  vacant 
until  they  can  be  brought  under  the  same  owner- 
ship with  parts  of  adjacent  lands  so  as  to  provide 
adequate  building  lots.  One  of  the  most  marked 
instances  of  this  was  in  the  widening  of  Delancey 
Street  to  make  a  proper  approach  for  the  Wil- 
liamsburg Bridge  in  New  York  City,  where  lots 
were  left  in  some  cases  less  than  lo  feet  deep. 
The  plan  for  the  establishment  of  a  new  traffic 
thoroughfare  between  the  north  and  south  termi- 
nal stations  in  Boston  shows  remnants,  the 
entire  length  amounting  to  48,274  feet,  absolutely 
unsuited  for  independent  development. 

104 


EXCESS   CONDEMNATION 


In  SO  far  as  remnants  are  unsuited  for  proper 
development  a  use  of  them  is  induced  which  robs 
an  improvement  of  much  of  its  effectiveness. 
Financially  the  city  loses  because  the  sort  of 
development  which  will  increase  assessed  valua- 
tions is  prevented.  Esthetically  the  city  suffers 
because  it  can  not  protect  its  streets,  its  parks,  and 
boulevards  by  an  effective  control  over  the  abut- 
ting land,  and  its  show  places  are  disfigured  by 
a  use  of  this  land  not  in  keeping  with  the  char- 
acter of  the  surroundings.  It  is  for  this  reason 
that  cities  have  been  forced  to  see  approaches  to 
public  buildings  lined  with  ill-assorted  structures, 
and  park  areas  surrounded  by  unsightly  dumps 
and  bill-boards.  The  net  benefit  to  the  city  of 
a  given  expenditure  for  park  purposes  may  easily 
be  reduced  by  these  means  to  a  small  fraction  of 
what  was  reasonably  expected  when  the  invest- 
ment was  made.  To  overcome  these  disadvantages 
and  to  secure  the  maximum  of  benefit  from  an  im- 
provement appears  to  be  the  primary  aim  of  excess 
condemnation  legislation  in  the  United  States. 

It  will  clear  the  way  for  a  discussion  of  the  sub- 
ject to  point  out  the  nearest  substitute  for  the 
excess  condemnation  method  which  is  ordinarily 
available  in  America  today.  The  absorption  by 
the  public  of  the  increase  of  property  values 
directly  resulting  from  an  improvement  made  at 
public  expense,  at  least  up  to  an  amount  equal  to 
the  cost  of  the  improvement,  may  be  more  or 
less  successfully  accomplished  by  special  assess- 

105 


CARRYING   OUT  THE   CITY    PLAN 

ments  as  set  forth  in  Chapter  III.  The  control 
over  property  adjacent  to  a  public  improvement 
just  in  so  far  as  that  control  is  needed  to  enable 
the  public  to  get  the  full  use  and  enjoyment  of  the 
public  property,  may  be  obtained  without  acquir- 
ing title  by  the  purchase  or  condemnation  of 
easements.  The  combination  of  the  two  is  be- 
lieved by  the  more  conservative  thinkers  on  the 
subject  to  afford  all  the  power  that  is  necessary 
without  the  dangers  of  excess  condemnation. 

THE    HISTORY   OF   EXCESS   CONDEMNATION    IN 
THE  UNITED  STATES 

The  Massachusetts  legislature  of  1903*  provided 
for  an  examination  and  report  upon  legislation 
needed  to  enable  a  city,  town,  or  state  commis- 
sion to  take  in  fee,  to  purchase,  or  otherwise  to 
acquire  for  public  purposes  and  in  connection 
with  any  public  work  all  or  any  part  of  the  land 
within  certain  defined  limits,  and  after  appropri- 
ating as  much  of  the  land  as  necessary  to  sell 
or  lease  the  remainder.  The  commission  sub- 
sequently appointed  by  the  governor  did  a 
thoroughgoing  piece  of  work  and  their  conclusions, 
embodied  in  two  reports  to  the  legislature  of  1904, 
both  now  out  of  print,  contained  very  valuable 
contributions  on  a  subject  on  which  there  is  scant 
literature. t 

*  Resolves  of  1903,  Chapter  86. 

t  Several  of  the  conclusions  are  found  in  the  Appendix,  pp.  308  ff . 

House  Document  No.  288  of  1904. 

House  Document  No.  1096  of  1904. 

106 


EXCESS   CONDEMNATION 

The  commission  found  no  precedent  and  little 
of  value  on  the  subject  of  excess  condemnation 
in  this  country,  and  in  the  cities  of  Europe  they 
found  the  principle  applied  in  two  very  different 
ways.  In  France,  according  to  the  letter  of  the 
law,  only  remnants  of  such  size  and  shape  as  to  be 
unsuited  to  the  erection  of  buildings  could  be 
taken  in  addition  to  the  land  actually  needed  for 
the  construction  of  the  improvement.  In  Eng- 
land, Belgium,  Switzerland,  and  Italy,  munici- 
palities were  allowed  to  take  all  the  property 
within  certain  bounds  in  the  neighborhood  of  a 
proposed  work,  to  use  what  was  necessary,  and  to 
dispose  of  the  remainder  by  sale  or  lease.  In  the 
bill  which  was  submitted  by  the  Massachusetts 
commission,  the  French  method  was  adopted  as 
sufficiently  broad  to  carry  out  the  purposes  of  the 
municipality  and  as  being  more  fair  than  the  other 
method  cited  to  the  property  owner  whose  land 
would  be  taken.  The  draft  of  the  bill  was  passed 
with  modifications  by  the  Massachusetts  legis- 
lature of  1904  and  is  known  as  the  "Remnant 
Act,"  the  principle  of  which  is  contained  in  the 
following  clauses : 

Section  2.  The  Commonwealth,  or  any  city  in  the 
Commonwealth  .  .  .  may  take  in  fee  by  right  of 
eminent  domain  the  whole  of  any  estate,  part  of  which 
is  actually  required  for  the  laying  out,  alteration  or 
location  by  it  of  any  public  work,  if  the  remnant  left 
after  taking  such  part  would  from  its  size  or  shape  be 
unsuited  for  the  erection  of  suitable  and  appropriate 

107 


CARRYING   OUT  THE    CITY    PLAN 

buildings,  and  if  public  convenience  and  necessity  re- 
quire such  taking. 

Section  15.  The  Commonwealth  or  the  city,  as  the 
case  may  be,  shall  determine  within  six  months  after 
the  completion  of  any  public  work  for  which  land  is 
taken  under  this  act,  or  within  six  months  after  the 
filing  of  a  final  decree  on  an  appeal  taken  under  this 
act,  whichever  shall  happen  later,  with  which  of  the 
adjoining  properties  the  public  interests  require  that 
each  parcel  of  land,  if  any,  taken  outside  the  boundaries 
of  the  public  work  should  be  united;  and  shall,  within 
said  six  months,  notify  the  owner  of  such  adjoining 
property,  if  his  address  is  known,  of  this  decision  by 
registered  letter  mailed  to  such  owner,  and  shall  annex 
to  the  notice  a  copy  of  this  section. 

Section  16.  If  such  owner  or  some  person  on  his 
behalf  shall  within  two  weeks  from  the  mailing  of  such 
notice  notify  in  writing  the  Commonwealth  or  the  city 
that  such  owner  wishes  for  an  appraisal  of  such  parcel, 
the  Commonwealth  or  the  city  shall  cause  such  parcel 
to  be  appraised  by  three  competent  and  disinterested 
persons,  one  of  whom  shall  be  appointed  by  the  Com- 
monwealth or  the  city,  one  by  said  owner,  and  one  by 
the  superior  court  for  the  county:  Provided,  however, 
that  the  Commonwealth  or  the  city  and  said  owner  may 
in  writing  appoint  a  sole  appraiser.  Said  appraiser 
or  appraisers  shall  forthwith  after  his  or  their  appoint- 
ment view  the  property  and  determine  the  fair  value 
of  such  parcel,  and  shall  make  written  report  to  the 
Commonwealth  or  the  city  of  the  same.  The  reason- 
able fees  and  expenses  of  the  appraiser  or  appraisers 
shall  be  paid  by  the  Commonwealth  or  the  city.  The 
Commonwealth  or  the  city  shall  forthwith  by  writing 

108 


EXCESS   CONDEMNATION 

mailed  to  such  owner  offer  such  parcel  to  such  owner 
at  the  value  as  determined  by  the  report  of  a  majority 
of  such  appraisers,  or  by  that  of  the  sole  appraiser  in 
case  of  the  appointment  of  one  appraiser. 

Section  17.  If  such  owner  shall  in  writing  accept 
said  oflfer  within  two  weeks  after  the  date  when  the 
same  is  mailed  to  such  owner,  the  Commonwealth  or 
the  city  shall  convey  such  parcel  to  such  owner  on  pay- 
ment of  the  purchase  money  to  the  Commonwealth  or 
the  city,  as  the  case  may  be,  within  thirty  days  after 
the  acceptance  of  the  offer.  The  conveyance  shall  be  by 
deed,  with  or  without  covenants  of  title  and  warranty, 
executed  and  acknowledged  in  the  name  and  behalf  of 
the  Commonwealth  or  the  city  by  the  officers  or  board 
which  have  or  has  taken  such  parcel,  or  by  their  or  its 
successors  or  successor,  and  may  be  made  subject  to 
such  restrictions  as  the  Commonwealth  or  city  may  in 
writing  have  notified  the  appraisers  or  appraiser  at  the 
time  of  their  or  his  appointment  would  be  imposed  on 
such  parcel. 

Section  18.  If  such  owner  fails  to  accept  the  offer 
within  the  time  limited,  or  having  accepted  it  fails  to 
make  payment  or  tender  of  the  purchase  money  within 
one  month  thereafter,  the  Commonwealth  or  the  city, 
if  it  does  not  take  said  adjoining  property  under  the 
provisions  of  section  twenty-nine*  may  at  any  time 
thereafter  sell  such  parcel  at  public  auction. 

Section  29.  If  the  owner  of  property  adjoining  a 
parcel  taken  under  this  act  and  outside  the  boundaries 

*  It  was  evidently  intended  to  insert  in  section  29  a  provision  under 
which  the  Commonwealth  might  condemn  the  whole  or  any  portion 
of  the  "adjoining  property"  if  the  owner  of  it  failed  to  effect  a  pur- 
chase of  the  remnant  offered  for  sale  by  the  Commonwealth,^  but  the 
provision  was  not  included  in  the  act  as  passed. 

*  See  draft  of  proposed  act.  House  Document  No.  288  of  1904. 

109 


CARRYING   OUT  THE   CITY    PLAN 

of  a  public  work  fails  to  accept  an  offer  to  sell  such  par- 
cel to  such  owner  made  under  the  provisions  of  section 
sixteen,  or,  having  accepted  such  offer,  fails  to  make 
payment  or  tender  of  the  purchase  money  within 
thirty  days  thereafter,  the  Commonwealth  or  city  shall 
cause  such  parcel  to  be  sold  by  public  auction,  subject 
to  such  restrictions  as  the  Commonwealth  or  city  may 
impose.  Land  sold  under  this  section  shall  be  con- 
veyed to  the  purchaser  in  the  same  manner  as  land 
conveyed  under  the  provisions  of  section  seventeen.* 

In  Ohiof  and  Marylandt  the  principle  is  incor- 
porated in  legislation  for  the  protection  of  parks, 
parkways,  and  approaches  to  public  buildings  and, 
as  far  as  the  language  of  the  acts  indicates,  excess 
taking  can  be  made  only  for  these  specific  purposes. 
The  Virginia  Assembly  of  1906  passed  an  act§  giv- 
ing the  power  to  condemn  and  take  more  land  than 
is  necessary  "when  the  use  of  the  land  proposed 
to  be  taken  would  impair  the  beauty,  usefulness, 
or  efficiency  of  the  parks,  plats,  or  public  property, 
or  which  by  the  peculiar  topography  would  im- 
pair the  convenient  use  of  a  street  or  render  im- 
practicable without  extra  expense  the  improve- 
ment of  the  same." 

The  nearest  approach  to  the  European  idea  of 
excess  condemnation  is  found  in  the  acts  of  Con- 

*  Acts  of  Massachusetts,  1904,  Chapter  443. 

t  Acts  of  Ohio,  1904,  p.  333.     See  Appendix  for  text,  p.  268. 

t  Acts  of  Maryland,  1908,  Chapter  166.  See  Appendix  for  text, 
p.  269. 

§  Acts  of  Virginia,  ,1906.  Chapter  194.  Approved  March  14th. 
See  Appendix  for  text,  p.  271. 

no 


EXCESS   CONDEMNATION 

necticut,  1907.*  The  language  of  this  clause  puts 
no  limit  on  the  amount  of  land  which  can  be 
taken.  Unless  the  courts  establish  such  a  limit  a 
broad  power  is  given.  The  city  is  allowed,  in  fact, 
to  embark  on  a  real  estate  speculation.  By  No. 
31 5  of  the  acts  of  Pennsylvania,  1907,  cities  are  al- 
lowed to  acquire  by  appropriation  private  property 
within  200  feet  of  the  boundary  of  parks,  parkways, 
and  playgrounds.  This  act  also  allows  the  resale 
of  surplus  land  with  restrictions  in  the  deed. 

The  Massachusetts  act  is  the  only  one  directed 
specifically  to  the  acquisition  of  remnants  which 
are  made  practically  unsalable  because  of  the 
taking  for  public  use,  but  only  on  this  ground  is 
it  to  be  distinguished  from  the  other  legislation 
above  cited.  In  all  this  legislation  the  purpose  is 
to  provide  a  more  effective  method  of  accomplish- 
ing an  improvement.  A  primary  purpose  in 
every  case  is  either  to  lay  out  or  widen  a  public 
street  or  to  acquire  or  protect  parks,  parkways,  or 
approaches  to  public  buildings.  All  of  these  pur- 
poses are  without  question  public,  and  the  taking 
of  excess  land  is  but  an  incident  to  an  acknowl- 
edged public  purpose;  namely,  to  insure  a  more 
useful  wide  street  or  a  more  attractive  parkway. 
There  is  no  suggestion  either  directly  or  by  in- 
ference in  any  of  this  legislation  that  the  excess 
taking  is  anything  more  than  an  incident  to  a 
public  purpose  and  a  means  of  se.curing  the  more 
perfect  and  successful  realization  of  that  purpose. 

*  Special  Acts  of  Connecticut,  1907,  No.  61.     Section  7. 
Ill 


CARRYING   OUT  THE   CITY    PLAN 

THE    CONSTITUTIONALITY    OF    EXCESS    TAKING 
The  Pennsylvania  act  is  the  only  one  which 
has  been  tested  by  judicial  decision. 

In  July,  19 1 2,  the  City  Council  of  Philadelphia 
authorized  the  taking  of  excess  land  under  the 
legislation  of  1907,  in  connection  with  the  proposed 
parkway  from  City  Hall  to  Fairmount  Park.  The 
question  of  the  constitutionality  of  the  act  was 
squarely  raised  and  the  lower  court  decided  in 
favor  of  its  validity,  but  this  decision  was  re- 
versed by  the  supreme  court  of  the  state.* 

That  the  "remnant  act"  of  Massachusetts 
would  be  declared  constitutional  is  suggested  in 
the  answer  of  the  Massachusetts  supreme  court 
to  a  question  of  the  legislature  in  19 10.  The 
question  arose  out  of  the  necessity  for  a  traffic 
thoroughfare  between  the  north  and  south  ter- 
minal stations  in  Boston.  It  appeared  to  the 
legislature  impossible  to  construct  a  direct  thor- 
oughfare between  these  stations,  unless  a  power  of 
eminent  domain  were  given  which  would  allow 
the  acquirement  and  reallotment  of  the  land  ad- 
jacent to  the  thoroughfare  in  lots  suitable  for 
mercantile  buildings.  As  presented  to  the  court 
the  question  was  as  follows: 

"Is  it  within  the  constitutional  power  of  the  legis- 
lature to  authorize  the  city  of  Boston,  or  such  other 
public  authority  -as  the  legislature  may  select,  to  lay 

*  Pa.  Mutual  Life  Ins.  Co.  vs.  Philadelphia,  argued  April  15,  19 13. 
See  Appendix,  p.  275. 


EXCESS   CONDEMNATION 

out  such  a  thoroughfare  and  rear  streets,  and  to  take 
not  only  the  land  or  easements  necessary  for  the  same, 
but  also  such  quantities  of  land  on  either  side  of  said 
thoroughfare  or  between  the  same  and  said  rear  streets 
as  may  be  reasonably  necessary  for  the  purposes  here- 
inbefore set  out,  with  a  view  to  the  subsequent  use  by 
private  individuals  of  so  much  of  the  property  taken  as 
lies  on  either  side  of  said  thoroughfare,  under  convey- 
ances, leases,  or  agreements  which  should  embody  suit- 
able provisions  for  the  construction  on  said  land  of 
buildings  suited  to  the  objects  and  purposes  herein- 
before set  out  and  for  the  use,  management  and  control 
of  said  land  and  buildings  in  such  manner  as  to  secure 
and  best  promote  the  public  interests  and  purposes 
hereinbefore  referred  to;  assuming  that  the  act  pro- 
vides just  compensation  for  all  persons  sustaining  dam- 
ages by  the  said  takings."* 

The  supreme  court  interpreted  the  question 
briefly  as  meaning  "Can  land  be  taken  with  a 
view  to  its  subsequent  use  by  private  individu- 
als?'' and  its  holding  is  that  where  the  purpose 
of  excess  taking  is  primarily  the  creation  of  lots 
suitable  for  use  of  private  individuals,  such  a  tak- 
ing is  clearly  unconstitutional.  The  court  seems 
to  make  a  distinction  near  the  end  of  the  opinion 
between  cases  where  the  excess  taking  is  merely 
incidental  to  the  main  purpose,  and  cites  the  rem- 
nant act  as  such  an  example.  We  have  therefore 
the  suggestion  that  the  remnant  act  might  be  found 
to  be  a  constitutional  exercise  of  power.  The  sug- 
gestion is  of  course  of  no  value  as  a  precedent,  but 

*  Massachusetts  Decisions,  Vol.  204,  pp.  606  flf. 
9  ir3 


CARRYING   OUT   THE    CITY    PLAN 

is  helpful  as  showing  the  sentiment  of  the  justices 
of  the  supreme  court  of  Massachusetts. 

The  doubtful  constitutionality  of  the  acts  con- 
taining the  excess-taking  principle  and  the  dis- 
satisfaction with  the  limitation  on  the  exercise  of 
the  power  of  eminent  domain,  have  resulted  in  the 
effort  to  modify  the  limitation  on  the  powers  as 
now  contained  in  state  constitutions  by  constitu- 
tional amendment.  Both  the  Massachusetts  and 
New  York  legislatures  have  passed  such  amend- 
ments, which  were  submitted  to  the  people  of 
both  states  in  the  fall  of  191 1.  The  New  York 
amendment  was  defeatedf  but  it  is  valuable  for 
purposes  of  comparison.  The  Massachusetts 
amendment  was  passed  by  a  large  vote,  and  at  the 
legislative  session  of  1912  a  special  act  gave  the 
city  of  Worcester  the  right  to  take  excess  land 
for  a  street  widening. {  The  people  of  Wisconsin 
and  Ohio  in  19 12  adopted  amendments  containing 
similar  wide  powers§  of  excess  condemnation. 

The  New  York  amendment  provided  that  when 
private  property  was  taken  for  public  use  by  a 
municipal  corporation  ''additional  adjoining  and 
neighboring  property  may  be  taken  under  condi- 
tions to  be  prescribed  by  the  legislature  by  gen- 

*  See  Appendix  for  text,  p.  279. 

t  The  second  attempt  to  pass  such  an  amendment  succeeded  in 
19 1 3,  but  it  is  much  more  restricted  in  scope  than  that  proposed  in 
191 1.     For  text  see  Appendix,  p.  248. 

t  Acts  of  19 12,  Chapter  186. 

§  Wisconsin  amendment  to  Article  1 1  of  Constitution  adopted 
November  4,  19 12.  See  Appendix,  p.  279.  Ohio  amendment  to  Art- 
icle 18,  Appendix,  p.  280. 

114 


EXCESS   CONDEMNATION 

eral  laws;  property  thus  taken  shall  be  deemed  to 
be  taken  for  a  public  use/' 

From  the  viewpoint  of  the  believer  in  excess 
taking  as  an  easy  means  of  correcting  a  defective 
street  system  and  as  the  handmaiden  of  recon* 
struction,  the  amendment  offered  in  191 1  which 
was  not  accepted  by  the  people  of  New  York  was 
ideally  phrased.  Any  excess  taking  which  the 
legislature  saw  fit  to  authorize  was  made  consti- 
tutional, whether  that  taking  was  a  mere  incident 
to  a  better  realization  of  a  public  purpose  or 
whether  it  was  primarily  a  speculation  to  recoup  the 
city's  investment  in  reconstruction.  It  is  not  an 
answer  to  the  extreme  radicalism  of  the  amendment 
to  say  that  the  legislature  would  probably  hedge  the 
power  of  excess  taking  with  limitations.  Radical 
legislation  even  in  New  York  is  not  impossible, 
and  a  most  radical  act  of  a  radical  legislature 
would  have  had  the  stamp  of  constitutionality 
placed  upon  it  by  this  amendment  if  the  people 
had  accepted  it. 

The  Massachusetts  amendment,  on  the  other 
hand,  limits  both  the  application  of  the  principle 
and  the  extent  of  the  excess  taking.  It  applies 
only  to  the  "laying  out,  widening  or  relocating 
of  highways"  and  the  amount  of  land  in  excess 
which  may  be  taken  is  "not  more  in  extent  than 
would  be  sufficient  for  suitable  building  lots  on 
both  sides  of  such  highway  or  street.''  The 
amendment  leaves  open  for  dispute  the  question 
of  what  shall  be  "a  suitable  building  lot,"  but 

115 


CARRYING   OUT  THE    CITY    PLAN 

this  can  best  be  defined  by  special  act  when  the 
peculiar  needs  of  each  improvement  are  considered. 

The  Wisconsin  amendment  makes  constitu- 
tional an  excess  taking  of  neighboring  property 
for  streets,  squares,  public  parks,  parkways,  civic 
centers,  and  playgrounds  and  their  surroundings, 
and  after  the  improvement  surplus  land  may  be 
conveyed  with  restrictions  to  protect  the  improve- 
ment. 

Before  these  amendments  to  the  constitution 
were  proposed,  court  decisions  were  frequent  that 
it  was  the  province  of  the  legislature  to  determine 
whether  a  proposed  taking  was  necessary  for  the 
public  use.  When  once  the  legislature  had  so  de- 
termined, only  in  case  of  a  manifest  injustice  or 
where  the  legislature  had  obviously  overstepped 
the  bounds  of  the  constitution  would  the  supreme 
court  interfere  with  the  legislative  action.  The 
amendments  take  away  the  limitation  set  in  the 
state  constitution  and  therefore  leave  no  consti- 
tutional question  for  the  state  judicial  tribunal 
to  determine.  Whether  the  federal  courts  would 
take  jurisdiction  of  such  a  case  from  the  state 
court  on  the  ground  that  property  is  taken  with- 
out due  process  of  law  in  violation  of  the  four- 
teenth amendment,  is  still  undetermined. 

THE  EXPEDIENCY  OF  ADOPTING  IN  THE  UNITED 

STATES  THE  EXCESS  CONDEMNATION 

PRINCIPLE 

We  are  not  here  considering  the  value  of  excess 
taking  where  the  sole  or  even  primary  purpose  is 

ii6 


EXCESS   CONDEMNATION 

to  recoup  the  municipality's  investment  in  a  pub- 
lic improvement.  Such  a  use  of  the  power  would 
probably  not  pass  the  constitutional  test,  would 
be  too  open  to  abuse,  and  would  tend  to  draw 
municipalities  into  such  large  speculative  holdings 
of  real  estate  as  might  easily  overstrain  their 
credit.  But  in  the  cases  where  excess  taking  is 
made  primarily  to  secure  the  greatest  physical 
benefit  from  the  improvement,  the  community  is 
able  incidentally  to  reap  a  portion  of  the  increase  in 
values  caused  by  the  investment  of  the  commu- 
nity's money  through  the  sale  of  such  land  as  is 
not  actually  needed  for  the  improvement.  This 
method  of  distributing  the  cost  of  an  improvement 
is  supposed  to  produce  a  larger  financial  return  to 
the  city  than  the  special  assessment  method,  and 
at  the  same  time  to  avoid  the  expense  of  litigating 
with  property  owners  the  question  of  benefit. 

I.    FINANCIAL  VALUE  OF   EXCESS   CONDEMNATION 

In  cities  where  special  assessments  to  cover  a 
large  portion  of  the  cost  of  acquiring  land  are  levied 
and  collected,  and  the  tax  payers  are  not  res- 
tive, there  is  little  enthusiasm  over  the  European 
method  of  financing  reconstruction.  But  cities 
in  which  special  assessments  are  ineffective  or  non- 
existent, as  in  Boston,  Philadelphia,  and  cities  of 
Ohio,  see  in  excess  condemnation  an  opportunity 
to  get  for  the  community  a  large  portion  of  the 
increment  resulting  from  reconstruction  with  less 
chance  for  litigation  by  the  land  holders.     No  city 

117 


CARRYING   OUT  THE   CITY    PLAN 

in  the  United  States  has  yet  experimented  with 
such  condemnation,*  but  precedents  from  abroad 
are  confidently  cited  as  establishing  its  financial 
value.  To  determine  the  soundness  of  this  opin- 
ion would  require  an  analysis  of  European  recon- 
structions in  which  excess  takings  have  been  made, 
and  such  an  analysis  depends  for  its  value  so  much 
on  a  first  hand  acquaintance  with  many  various 
sets  of  local  conditions  that  to  attempt  it  here  is 
impossible.  A  review  of  the  available  sources  of 
information  on  the  subject  does  not  make  out  an 
overwhelming  case  for  the  financial  success  of  ex- 
cess condemnation. 

Financial  Results  in  France.  From  1852 
to  1869  new  streets  were  laid  out  in  Paris  which 
required  a  total  surface  of  2,726,000  square  yards. 

*  We  refer  to  clear  cases  of  the  deliberate  use  of  the  method,  espe- 
cially in  connection  with  street  laying  out.  In  the  case  of  parks  and 
parkways  an  entire  lot  is  systematically  condemned  by  certain  boards 
whenever  they  find  themselves  compelled  to  take  so  costly  a  portion 
that  the  whole  would  be  a  better  bargain.  Even  though  a  portion  of 
the  lot  taken  might  lie  entirely  outside  the  line  of  any  proposed  con- 
struction a  park  commission  could  claim  if  pressed  that  its  acquire- 
ment and  planting  were  properly  incidental  to  the  park  purpose  of 
the  improvement;  and  courts  are  very  slow  to  upset  an  adminis- 
trative decision  on  such  a  point.  After  acquirement  the  adminis- 
trative authority  can  decide  that  the  remnant  is  not  needed  by  the 
public  after  all,  and  if  properly  authorized  by  the  legislature  may 
proceed  to  "abandon"  or  sell  it  for  a  suitable  consideration. 

In  the  case  of  the  Burnt  District  Commission,  created  in  1904 
(Acts  of  Maryland,  1904,  Chapter  87),  to  deal  with  the  emergency 
caused  by  the  Baltimore  fire,  there  was  definite  provision  for  the  con- 
demnation of  entire  lots  in  case  a  portion  was  needed  for  a  public  im- 
provement and  for  the  sale  of  the  remnants  at  public  auction.  It  is 
reported  that  this  power  was  used  in  at  least  one  case  and  that  a  rem- 
nant almost  unusable  alone  was  bought  by  a  speculator  at  public  auc- 
tion and  used  in  a  manner  calculated  to  extort  blackmail  from  the 
owner  next  in  the  rear. 

118 


EXCESS   CONDEMNATION 

Under  the  law,  the  authorities  were  allowed  to 
take  in  excess  of  actual  need  for  street  purposes 
only  when  the  lots  left  after  the  taking  were  un- 
suitable in  shape  or  size  for  the  erection  of  proper 
buildings;  but  the  policy  of  the  French  govern- 
ment allowed  a  very  liberal  construction  of  the 
law,  and  'remnants*  were  taken  in  some  cases  5,000 
square  feet  in  area.  Remnants  which  were  at  the 
time  of  the  taking  considered  unsuitable  for 
building  purposes  were  subsequently  subdivided 
into  at  least  two  lots,  each  of  which  was  sold  for 
a  building  lot.  Just  how  much  excess  land  was 
taken  for  the  purpose  of  new  streets  in  this  period 
is  not  known.  In  1869  the  sales  of  such  land  had 
totaled  $51,800,000,  and  there  was  still  on  hand 
728,400  square  yards,  valued  at  $14,400,000.  The 
cost  of  all  the  land  taken  was  $259,400,000. 
Valuing  the  excess  taking  at  $66,200,000,  the  land 
actually  used  for  street  purposes  cost  $193,200,000.* 
"In  other  words,  the  sale  of  lands  purchased  in 
excess  of  the  requirements  for  the  purpose  of 
making  new  streets,  together  with  the  sale  of 
390,000  square  yards  obtained  through  the  discon- 
tinuance of  old  streets,  yielded  only  25.5  per  cent 
of  the  original  outlay  upon  land — $259,400,000. 
That  means  that  the  efforts  to  secure  a  part  of  the 
increase  in  values  resulting  from  the  laying  out  of 
56.25  miles  of  streets  proved  unsuccessful.*' t 

*  Le  Journal  Officiel  de  V Empire  Fratifais,  June  i8,  1868,  January 
13,  1869,  November  28,  1869. 
t  Massachusetts  House  Document  No.  288,  1904,  p.  58. 
119 


CARRYING   OUT  THE    CITY    PLAN 

No  period  offered  a  better  opportunity  for  a 
successful  test  of  the  principle  of  excess  taking  as  a 
method  of  recoupment.  The  years  from  1852  to 
1869  were  marked  by  rapid  increase  in  values. 
The  prices  received  by  the  city  for  the  sale  of  sur- 
plus land  were  considered  excellent,  but  the  in- 
itial cost  of  all  the  land  condemned  had  been 
enormously  heavy  and  for  this  the  juries  were  re- 
sponsible. M.  Brelay,  a  former  member  of  the 
Commission  des  Indemnites,  a  body  established 
by  the  state  for  the  purpose  of  bringing  together 
without  recourse  to  the  jury,  public  authorities 
and  owners  of  land  says:  "The  proceedings  before 
the  juries  are  among  the  most  discouraging  symp- 
toms of  the  day.  In  these  proceedings  cheating 
almost  has  come  to  be  honorable;  the  juries  will- 
ingly accept  scandalous  statements  as  to  value 
and  inventories  and  leases  prepared  by  lawyers 
and  expert  valuers  who  display  a  profound  knowl- 
edge of  the  extent  to  which  human  folly  will  go 
in  the  person  of  the  juror."  In  1890  awards  were 
so  excessive  to  owners  of  land  that  an  award  of 
50  per  cent  more  than  the  fair  market  value  was 
commented  upon  as  honest  by  Brelay  in  his  sur- 
vey of  public  improvements  in  Paris.*  Awards  to 
tenants,  whether  merchants  or  householders,  were 
even  more  excessive.  In  1888  the  city  took  48 
houses  occupied  by  tenants  who  paid  an  average 
rental  of  ^54  a  year.     The  owners  of  property 

*  L'Economiste  Franqais,  May  31,  1884,  June  18,  1887,  September 
9.  1903. 

120 


EXCESS   CONDEMNATION 

had  the  right  to  dispossess  the  tenants  on  three 
months'  notice.  The  tenants'  holdings  were  there- 
fore worth  $13.50 — three  months'  rent;  the  juries 
awarded  an  average  of  $169.*  In  another  case 
the  city  offered  housekeeping  tenants  $700  ;t  the 
jury  awarded  $13,000.  The  offer  of  the  city  to 
tenants  with  trade  interests  was  increased  by 
the  jury  from  $486,560  to  $935,1204  To  one 
tenant,  with  no  trade  interest  or  lease,  the  city 
offered  $7.40;  the  jury  gave  him  $600. §  "The 
city  had  authorized  the  construction  of  the 
Bourse  de  Commerce  on  the  assumption  that  the 
compensations  for  taking  for  public  use  would 
aggregate  $5,000,000;  in  September,  1887,  the  com- 
pensations awarded  aggregated  $8,000,000."  || 

The  avowed  purpose  in  the  liberal  takings  be- 
tween 1852  and  1869  was  to  reduce  the  expense  of 
street  improvements.  There  was  no  satisfactory 
law  under  which  the  cost  of  land  for  streets  could 
be  assessed  on  benefited  properties,  and  only  by 
the  sale  of  excess  lands  could  the  expense  be  re- 
duced. The  failure  of  the  method  resulted  in  a 
change  of  policy  by  the  Council  of  State  which, 
from  the  time  of  the  establishment  of  the  present 
republic,  opposed  any  excess  takings  simply  for 
the  purpose  of  resale.  When  the  Trousseau  Hos- 
pital was  removed  the  Council  of  State  refused  to 
approve  the  taking  of  any  remnant  whose  area 

*  L'Economiste  Franqais,  September  i,  1888.  See  also  Mass- 
achusetts House  Document  No.  288  of  1904,  pp.  60  ff. 

\  L' Economisie FranQais, hugnsi 2^,  1890.     %  Ibid.,  June  18,  1887. 
§  Ibid.,  June  18,  1887.  ||  Ibid.,  September  10,  1887. 

121 


CARRYING   OUT  THE    CITY    PLAN 

exceeded  650  square  feet,  even  though  it  was 
admitted  that  the  controlling  purpose  of  the  city 
authorities  was  not  recoupment.*  Approval  was 
given  for  the  taking  of  small  remnants  on  the 
ground  that  the  additional  cost  of  acquisition  was 
trifling,  and  small  remnants  were  readily  sold  at  a 
price  which  more  than  compensated  for  the  ad- 
ditional cost. 

As  a  result  of  the  experience,  both  before  and 
after  the  establishment  of  the  present  republic,  it 
is  the  consensus  of  opinion  among  those  who  have 
had  experience  with  both  methods,  that  extended 
excess  taking  for  the  purpose  of  securing  a  profit 
from  the  resale  of  surplus  land  is  neither  desirable 
nor  profitable.! 

Financial  Results  in  Belgium.  The  law 
which  permits  excess  taking  in  Belgium  was  passed 
at  the  instance  of  Brussels  and  to  satisfy  a  peculiar 
need.  The  old  city  of  Brussels  had  no  street 
system  worthy  of  the  name,  and  the  jumble  of 
narrow,  crooked  streets  and  blind  alleys  resulted 
in  a  most  unsanitary  condition.  Lots,  as  a  rule, 
were  small,  in  some  cases  ridiculously  so,  one  plan 
showing  lots  with  areas  of  150  to  175  square  feet. 
Through  the  center  of  the  lower  part  of  the  city 
flowed  the  River  Senne  which  was  little  better 
than  an  open  sewer.  The  improvement  made 
possible  by  the  law  of  1867  was  to  carry  the  river 

*  Massachusetts  House  Document  No.  1096  of  1904,  p.  5. 
t  Ibid.,  p.  6. 

122 


EXCESS   CONDEMNATION 

underneath  the  city  and  to  build  over  the  old  river 
bed  a  broad  central  thoroughfare,  which  is  now  the 
main  business  street  of  the  city.  The  law  fixed 
no  limit  to  the  extent  of  land  which  could  be  taken 
in  excess  of  actual  needs,  and  Brussels  used  the 
law  most  liberally. 

In  addition  to  the  heavy  outlay  for  land,  the 
authorities  incurred  extraordinary  expenses  in 
order  to  induce  a  rapid  and  yet  proper  develop- 
ment of  the  new  streets.  Several  public  buildings 
were  constructed  by  the  city  on  the  new  boule- 
vard; loans  were  made  to  contractors  to  the  ex- 
tent of  one-half  of  the  estimated  cost  of  buildings; 
surplus  land  was  sold  on  very  easy  terms,  the  only 
requirement  being  the  payment  of  4.5  per  cent  per 
annum  on  the  purchase  price  for  sixty-six  years, 
payments  which  were  calculated  to  "extinguish 
the  principal  of  the  debt  at  the  end  of  that  term 
while  giving  the  city  an  income  on  the  amount 
unpaid  of  4^  per  cent.*'*  These  terms  proved 
altogether  too  tempting  and  the  speculation  that 
resulted  brought  about  wholesale  failure  of  con- 
tractors and  purchasers.  In  the  end  the  city  was 
forced  to  complete  the  construction  of  the  new 
boulevard  at  an  expense  greatly  in  excess  of  the 
original  estimate,  to  complete  unfinished  buildings 
on  which  loans  had  been  made,  and  to  foreclose 
through  the  failure  of  purchasers  of  lots.  Today 
the  city  is  the  owner  of  nearly  400  buildings  on 
this  thoroughfare  known  as  the  New  or   Inner 

*  Massachusetts  House  Document  No.  1096  of  1904,  p.  12. 
123 


CARRYING   OUT  THE   CITY    PLAN 

Boulevard.  The  increase  in  debt  occasioned  by 
this  and  other  improvements  was  enormous.  At 
the  beginning  of  the  year  1867  the  debt  was  less 
than  ^8,000,000;  by  the  year  1879  it  exceeded 
$50,000,000;  and  when  refunded  in  1886  it  was 
about  $56,000,000.  The  city  in  the  early  8o's 
was  on  the  verge  of  bankruptcy.* 

In  1902  it  was  estimated  that  the  properties 
acquired  by  the  city  in  connection  with  the  new 
boulevard  had  cost  approximately  $6,400,000. 
"The  value  of  the  properties  at  the  time  of  acqui- 
sition was  fixed  either  by  expert  appraisal  or  the 
foreclosure  sale  at  $5,200,000."  In  1902  they 
were  believed  to  be  worth  about  $6,400,000;  but 
on  the  basis  of  the  income  which  the  city  receives 
they  would  not  sell  for  much  more  than  $5,500,000, 
and  the  city  is  satisfied  to  keep  the  properties 
which  are  yielding  more  than  enough  *'to  meet 
interest  and  sinking  fund  requirements!  on  the 
amount  of  debt  which  could  be  retired  through 
their  sale.'* 

Authorities  of  the  city  of  Brussels  without  ex- 
ception consider  that  excess  taking  is  the  only 
method  which  could  have  produced  the  Brussels  of 
today,  and  the  burgomaster,  in  1904,  was  even 
of  the  opinion  that  the  method  had  been  a  means 
of  reducing  the  expense  of  street  improvements. 
Other  cities  of  Belgium,  by  avoiding  the  extra- 
ordinary expense  connected  with  the  building  op- 

*  Massachusetts  House  Document  No.  1096  of  1904,  p.  14. 
t  Ibid.,  p.  13. 

124 


EXCESS   CONDEMNATION 

erations  under  loans  undertaken  in  Brussels,  are 
reported  to  have  secured  a  profit  out  of  the  sales 
of  excess  lands.  This  is  notably  so  in  the  case  of 
Liege.  Despite  the  financial  strain  through  which 
Brussels  went  from  1875  to  1886,  it  is  probably 
true  that  the  peculiar  conditions  of  Brussels  jus- 
tified the  extraordinary  methods  adopted  for  its 
improvement;  but  whatever  may  be  the  consen- 
sus of  opinion  about  the  success  of  the  experi- 
ence of  the  city  with  excess  condemnation  it  can 
not  be  advantageously  cited  as  a  precedent  for 
the  adoption  of  excess  condemnation  as  a  means 
of  reducing  the  expense  of  reconstruction  in  the 
United  States.  The  experience  with  excess  taking 
in  Paris  and  in  the  cities  of  Belgium  shows  con- 
clusively that  a  considerable  period  must  elapse 
before  real  estate  contiguous  to  the  improvement 
increases  to  any  great  extent  in  value*  and  this 
experience  is  confirmed  by  that  of  London  as 
shown  below.  It  has,  with  surprising  uniformity, 
been  at  least  eight  years  in  all  three  countries 
before  such  increase  has  been  noticeable.  As  an 
element  of  the  cost  of  excess  condemnation,  there- 
fore, the  interest  on  the  outlay  for  the  acquisition 
of  land  and  buildings  must  be  figured  for  a  period 
of  eight  to  ten  years. 

Financial  Results  in  London.  From  1857 
to  1889  the  Metropolitan  Board  of  Works  of 
London  made  14  miles  of  street  widenings  and 

*  Massachusetts  House  Document  No.  1096  of  1904,  p.  15. 
125 


CARRYING   OUT   THE    CITY    PLAN 

thoroughfares,  for  the  most  part  in  the  central 
portion  of  the  city,  in  order  to  ''supply  the  de- 
ficiencies resulting  from  centuries  of  neglect  and 
to  keep  pace  with  the  wants  of  an  ever  increasing 
population/'*  During  these  years  the  policy  of 
the  board  was  most  conservative,  and  in  this 
respect  it  differs  from  both  the  practice  in  Paris 
and  the  practice  in  Belgium.  The  taking  of  costly 
buildings  was  avoided  even  at  the  expense  of  the 
appearance  of  the  street,  and  such  takings  as  were 
made  were  strictly  limited  to  those  properties  the 
whole  or  a  part  of  which  were  required  for  the 
actual  improvement.  The  cost  of  the  land  taken 
for  street  improvements  was  $58,859,000,  and 
there  was  subsequently  recovered  from  the  sale  of 
surplus  lands  $25,607,000  or  43.5  per  cent.f  The 
exact  amount  of  land  taken  or  the  land  sold  is  not 
given  in  the  History  of  London  Street  Improve- 
ments, but  in  connection  with  each  street  the  total 
cost  and  the  total  return  from  sales  are  given ;  and 
of  the  54  separate  improvements  made  by  the 
Metropolitan  Board  of  Works  only  one,  namely, 
Northumberland  Avenue,  shows  a  profit  from  the 
entire  transaction  exclusive  of  cost  of  construction. 
The  cost  was  £711,491  and  recoupment  from 
sales,  £831,310.  The  profit  in  this  street  improve- 
ment is  variously  accounted  for. J     In  evidence 

*Edwards,  P.  J.:   History  of  London  Street  Improvements,  1855- 
1897,  p.  1 1.     London,  P.  S.  King  &  Son,  1898. 

t  Massachusetts  House  Document  No.  288  of  1904,  p.  65. 

t  Edwards,  op.  cit.,  p.  17. 
See  also  Report  of  the  Massachusetts  Commission  on  the  Right 
of  Eminent  Domain.     House  Document  No.  288  of  1904,  p.  68. 

126 


EXCESS   CONDEMNATION 

given  before  the  select  committee  of  the  House 
of  Lords  the  case  of  Northumberland  Avenue  was 
cited  as  entirely  exceptional,  because  the  Duke  of 
Northumberland  had  given  the  land  at  a  price 
which  was  calculated  to  leave  a  profit  from  the 
improvement.  Moreover,  the  land  was  not  occu- 
pied by  buildings  and  there  were  no  tenants  with 
trade  interests.  It  is  these  two  factors,  represent- 
ing a  dead  loss  to  be  charged  against  any  increase 
in  land  values,  which  are  largely  responsible  for 
the  poor  financial  showing  of  excess  condemnation. 
Out  of  a  total  of  57  streets,  those  in  which  the 
recovery  exceeds  35  per  cent  of  the  cost  are  given 
in  the  following  table:* 


TABLE  6. — COMPENSATION  FOR  LAND,  GROSS  COST, 
RECEIPTS  FROM  SALE  OF  LAND,  AND  NET  COST 
FOR  IMPROVEMENTS  MADE  BY  THE  METROPOLITAN 
BOARD  OF  WORKS  IN  CASES  IN  WHICH  THE  RE- 
COVERY EXCEEDED  35  PER  CENT  OF  THE  COST. 
LONDON,   1857-1889 


Street 


Compen- 
sation for 
land 


Garrick 
Southwark    . 
Queen  Victoria    . 
High  St.,  Shoreditch 
Shaftsbury  Ave.  . 
Mare  St.,  Hackney 
Tooley  St,  Extension 


£106,691 
476,238 

2,055,408 
184,184 

1,004,990 

54.175 
68,673 


Other 
pay- 
ments 
reck- 
oned 


£16,521 
108,692 
245,112 

27.519 
131,466 

5.827 
7.233 


Gross 
cost 


£123,212 

584,930 

2,300,520 

211,703 

1,136,456 

60,002 

75,906 


Receipts 
from 

sales  of 
land 


£89,072 

218,860 

1,224,233 

89,887 

377.569 

24,340 

45.388 


Net  cost 


£34,140 

366,070 

1,076,287 

121,816 

758.887 

35.662 

30,518 


*  Edwards,  op.  cit.,  pp.  134,  135,  136,  137. 
127 


CARRYING   OUT   THE    CITY    PLAN 

Most  of  the  remaining  streets  show  a  recovery 
from  the  sale  of  surplus  land  of  less  than  20  per 
cent,  and  doubtless  in  many  of  these  cases  if  the 
taking  had  been  limited  to  the  land  necessary  for 
the  street  there  would  have  been  a  saving  in  the 
net  cost.  In  the  case  of  Gray's  Road  Inn,  for 
instance,  a  simple  street  widening,  the  land  alone 
cost  ^2,017,000  and  from  sales  ^422,000  was  re- 
covered, which  made  a  net  cost  of  ^1,595,000. 
"Had  the  board  bought  only  the  land  needed 
for  street  purposes  the  cost  would  have  been 
g  1, 264,000."* 

The  Metropolitan  Board  of  Works  was  criti- 
cized for  not  making  more  liberal  takings,  and  in 
the  history  of  its  successor,  the  London  County 
Council,  many  bills  were  proposed  which  au- 
thorized a  more  liberal  taking  of  land  solely 
for  recoupment  purposes.  The  London  County 
Council,  however,  continued  the  policy  of  the 
Metropolitan  Board  of  Works  and  favored  as  an 
additional  method  of  paying  for  the  cost  of  the 
improvements  a  special  assessment  for  benefit. 

The  relative  advantages  of  excess  taking  for 
*' recoupment"  and  the  levying  of  an  assessment 
for  benefit  were  the  subject  of  investigation  dur- 
ing the  history  of  the  London  County  Council. 
Members  of  the  old  Metropolitan  Board  of  Works 
were  uniform  in  condemning  excess  takings  as  a 
method  of  reducing  the  cost  of  improvements. f 

*  Massachusetts  House  Document  No.  288  of  1904,  p.  67. 
t  Op.  cit.,  pp.  67-68. 

128 


EXCESS   CONDEMNATION 

In  1894  Mr.  Charles  Harrison,  vice-chairman  of 
the  London  County  Council,  said  that  recoupment 
as  carried  out  in  London  had  been  unsatisfactory 
and  had  tended  to  result  in  a  net  loss.  Mr.  W. 
H.  Dickenson,  deputy  chairman  of  the  London 
County  Council,  was  of  the  opinion  that  past 
public  improvements  had  produced  a  rise  in 
prices  which  would  have  made  the  recoupment 
operations  yield  a  certain  profit  had  that  profit 
not  been  eaten  up  before  it  had  been  obtained. 
Mr.  J.  F.  Moulton,  member  of  the  London  County 
Council,  gave  evidence  that  "recoupment  is  al- 
most always  a  loss,  and  increases  the  cost  unless 
you  are  going  through  comparatively  unoccupied 
property  or  property  which  is  used  for  habitation 
and  not  for  purposes  of  trade.''  H.  L.  Cripps, 
twenty-five  years  a  member  of  the  Metropolitan 
Board  of  Works,  said,  **  It  may  be  taken  generally 
that  in  no  single  case,  according  to  the  opinions 
of  competent  surveyors,  has  recoupment  turned 
out  other  than  an  extravagant  operation.''  As 
a  result  of  its  own  experience  and  that  of  its  pre- 
decessor, the  Metropolitan  Board  of  Works,  the 
London  County  Council  took  the  position  before 
every  investigating  committee  of  Parliament  that 
the  practice  of  recoupment  by  the  sale  of  excess 
lands  should  give  way  as  both  less  desirable  and 
less  practicable  than  an  assessment  for  special 
benefit. 

From  1890  to  1898  Parliament  refused  to  grant 
to  the  Council  the  power  to  assess  for  special  bene- 
10  129 


CARRYING   OUT   THE    CITY    PLAN 

fit,  and  in  this  period  practically  no  large  improve- 
ment schemes  were  initiated  by  the  Council.  In 
1899  the  power  was  granted  and  was  incorporated 
in  the  legislation  which  made  possible  the  King's 
Highway  improvement  from  Holborn  to  the 
Strand.  This  is  probably  the  most  important 
large  improvement  of  recent  years,  and  in  it  are 
united  both  the  principles  of  excess  condemnation 
and  of  assessment  for  betterment.  It  has  been 
cited  in  this  country  as  the  strongest  illustration 
of  the  advantage  of  excess  taking  as  a  method  of 
recouping  the  cost  of  an  improvement. 

It  is  impossible  to  get  accurate  figures  on  the 
net  cost  of  this  improvement  since  much  of  the 
excess  land  taken  is  not  yet  sold  or  leased,  and 
since  it  is  not  certain  what  portion  of  the  original 
cost  has  been  returned  to  the  city  by  sale  of  ex- 
cess land  and  what  portion  has  been  returned  by 
assessment  for  benefit.  The  cost  of  land  taking 
and  improvement  is  variously  estimated  from 
£4,862,500  to  £7,000,000.  The  last  figure  in- 
cludes approximately  £2,000,000  for  interest 
charges  covering  a  period  of  at  least  fifteen  years. 
The  most  favorable  estimate  of  the  return  is 
£5,000,000,  which  includes  the  return  from  the 
benefit  assessment,  making  the  net  cost  of  the 
improvement  approximately  £2,000,000,  or  the 
amount  of  interest  charges  during  the  period  of 
development.* 

*  Manuscript  Report    of  London  County  Council   Improvement 
Committee,  1910. 

130 


EXCESS   CONDEMNATION 

In  analyzing  these  figures  it  must  be  remembered 
that  they  were  submitted  by  a  political  party 
opposed  to  the  one  which  initiated  the  scheme,  and 
items  of  cost  are  included  which  are  more  than 
offset  by  indirect  gains  that  are  not  easily  reduc- 
ible to  figures.  The  physical  results  accomplished 
by  the  King's  Highway  would  have  been  impossible 
without  the  very  liberal  use  of  excess  taking. 
The  very  satisfactory  financial  result  may  be  due 
in  a  large  measure  to  the  advantageous  lease  of 
surplus  land,  but,  considering  the  opinion  of  best 
informed  authorities  in  London  and  the  history 
of  London  street  improvements  from  1859  to  1900, 
and  considering  further  that  some  part  of  the 
return  in  the  case  of  the  King's  Highway  is  the 
result  of  betterment  assessments  on  property  not 
acquired,  it  seems  unwise  to  lay  too  great  stress 
on  the  King's  Highway  improvement  as  a  pre- 
cedent for  the  use  of  excess  taking  merely  as  a 
method  of  recoupment. 

The  causes  of  the  general  failure  of  excess  taking 
to  give  satisfactory  financial  returns  in  London  are 
much  the  same  as  they  are  in  France: 

First,  the  cost  of  acquiring  excess  land  is  great 
because  of  extravagant  jury  awards  and  because 
of  the  practice  of  paying  for  trade  interests  and 
for  the  "goodwill"  of  such  businesses  as  are 
obliged  to  seek  other  locations.  Mr.  Harrison, 
vice-chairman  of  the  County  Council,  is  of  the 
opinion  that  recoupment  cases  show  not  that 
there  is  a  loss  on  the  land  which  is  acquired,  but 

131 


CARRYING   OUT   THE    CITY    PLAN 

that  the  loss  arises  exclusively  from  buying  what 
can  not  be  resold  (trade  interests),  and  represents 
great  waste,  legal  costs,  and  other  items  of  ex- 
penditure attached  to  each  interest.*  Mr.  Dick- 
enson, deputy  chairman  of  the  County  Council, 
believes  that  even  if  the  fee  simple  alone  were 
taken  and  the  leasehold  and  subleasehold  interests 
allowed  to  run  out,  extravagant  prices  would  be 
paid  and  that  it  would  be  best  to  "intercept  the 
benefit"  by  means  of  a  betterment  tax.  The  fee 
simple  alone  would  cost  at  least  lo  per  cent  more 
than  the  market  value,  and  to  that  sum  must  be 
added  much  more  in  costs. f 

Second,  the  effect  on  values  of  an  improvement 
is  uncertain.  In  every  country  where  excess  tak- 
ing is  practiced  it  is  the  common  experience  to 
find  that  occupation  of  all  kinds  adapts  itself 
slowly  to  a  considerable  change  in  the  street  plan. 
This  phenomenon  is  not  dependent  on  racial 
characteristics.  In  Paris,  in  the  cities  of  Belgium, 
and  in  London  at  least  eight  years,  as  has  been 
noted,  were  necessary  before  the  city  or  property 
owners  received  the  benefit  expected  from  the 
change. 

Third,  the  large  power  entrusted  to  adminis- 
trative boards,  both  in  the  awards  for  damages 
and  in  the  negotiation  and  sale  of  excess  land,  is 
open  to  great  abuse.  Charges  of  maladministra- 
tion in  the  Metropolitan  Board  of  Works  were 

*  Massachusetts  House  Document  No.  288  of  1904,  p.  76. 
t  Ibid.,  p.  76. 

132 


EXCESS   CONDEMNATION 

made  the  subject  of  investigation  by  a  royal  com- 
mission in  1888,  and  in  spite  of  the  finding  by  the 
commission  that  the  board  was  not  corrupt,  a 
great  deal  of  uncontradicted  evidence  of  dishonest 
practice  was  offered. 

Difficulties  in  the  United  States.  In  con- 
sidering whether  excess  condemnation  is  justifiable 
on  the  ground  of  securing  to  the  city  such  profit 
from  the  resale  of  excess  land  as  will  enable  it  to 
recoup  a  large  part  of  the  cost  of  the  improvement, 
it  must  be  borne  in  mind  that  "failure  of  admin- 
istration*' is  as  likely  to  defeat  expectations  in 
the  United  States  as  in  Europe.  Certainly  jury 
awards  in  many  jurisdictions,  and  particularly  in 
older  jurisdictions,  where  reconstruction  is  most 
necessary,  are  excessive,  and  municipal  adminis- 
trations in  the  United  States  are  no  more  above 
temptation  than  was  the  London  Metropolitan 
Board  of  Works. 

2.  physical  value  of  excess  condemnation 
Irrespective  of  its  value  as  a  financial  expedient, 
excess  taking  allows  the  municipality  to  secure 
the  greatest  physical  benefit  from  an  improvement. 
The  widening  or  relocating  of  a  built-up  street 
is  likely  to  involve  a  complete  rearranging  of  lot 
fines,  particularly  in  older  cities  where  the  lot  line 
is  irregular  and  the  depth  of  lots  varies  greatly. 
To  limit  the  taking  of  land  to  that  actually  ac- 
quired for  the  construction  of  the  street  results 
inevitably  in  remnant  lots,  and  the  one  efi"ective 

133 


CARRYING   OUT  THE    CITY    PLAN 

way  to  unite  these  remnants  with  larger  parcels 
is  to  put  their  control  in  the  hands  of  the  munici- 
pality, and  to  provide  for  an  impartial  appraisal 
of  their  value.  It  should  be  an  exceptional  case 
where  the  owner  of  the  lot  adjoining  the  remnants 
would  not  take  the  land  at  its  appraised  value, 
but  even  if  the  remnants  remained  unoccupied 
their  control  by  the  municipality  would  be  more 
likely  to  prevent  their  use  for  undesirable  purposes 
than  if  they  were  left  in  private  ownership. 

Control  over  remnants  is  possible  with  a  very 
limited  right  of  excess  taking.  If  the  right  is  en- 
larged and  the  municipality  permitted  to  take  on 
both  sides  of  a  widened  business  thoroughfare 
land  enough  for  suitable  building  lots,  the  con- 
struction of  buildings  can  be  secured  which  will 
fit  the  thoroughfare  and  will  yield  the  highest 
possible  return  in  taxation.  It  is  equally  desir- 
able for  the  municipality  to  control  land  abutting 
on  parks,  parkways,  and  approaches  to  public 
buildings,  both  to  prevent  a  use  of  the  land 
which  would  be  disfiguring  and  to  induce  by  re- 
striction in  the  deed  of  sale  of  such  land  a  type 
of  construction  which  would  harmonize  with  the 
public  purpose. 

Those  who  oppose  the  radical  extension  of  the 
power  of  eminent  domain  believe  that  control 
over  development  by  the  municipality  can  be  as 
effectively  gained  by  the  acquisition  of  easements 
in  the  land  abutting  on  streets,  parks,  arid  park- 
ways, which  would  prohibit  certain  uses  of  the 

134 


EXCESS    CONDEMNATION 

land  and  prescribe  the  character  and  even  the 
style  of  architecture  of  the  buildings  constructed 
upon  it.  Much  has  been  accomplished  by  such 
easements.  They  may  do  no  more  than  require 
an  open  front  yard  or  garden  of  minimum  depth 
on  the  private  property*  or  fix  an  arbitrary  height 
limitation  on  buildings,!  or  they  may  require 
approval  in  detail  by  a  public  authority  of  the 
designs  of  buildings  in  case  they  are  built  above 
or  beyond  certain  limits. J  In  theory  at  least  they 
may  curtail  the  freedom  of  the  land  owner  to  any 
extent  which  might  be  found  necessary  to  secure 
to  the  public  completely  satisfactory  use  of  the 
adjacent  public  improvement.  But  practically 
they  are  limited  by  the  fact  that  if  they  diminish 
too  far  the  freedom  of  control  which  the  owner  of 
the  fee  can  exercise  over  the  development  and  use 
of  the  property  they  will  establish  a  divided  re- 
sponsibility which  is  fatal  to  efficiency  and  initi- 
ative, and  which  absolutely  destroys  much  of  the 
economic  value  of  the  property.  The  fear  of  such 
a  result  may  raise  the  damages  for  the  acquire- 
ment of  extensive  easements  almost  to  the  full 
value  of  the  property.  In  addition  to  this  practi- 
cal limitation  upon  the  taking  of  easements  in 
connection  with  special  assessments  as  a  substi- 
tute for  excess  condemnation  in  those  cases  to 
which  the  latter  is  specially  applicable,  it  is  to  be 

*  Customary  easement  along  parkways  in  many  cities, 
t  Copley  Square  case,  see  pp.  19  ff. 
X  Restrictions  on  certain  Boston  parkways. 
135 


CARRYING   OUT   THE    CITY    PLAN 

noted  that  one  important  function  of  the  excess 
condemnation  method  is  not  provided  for  at  all; 
namely,  the  prompt  readjustment  of  such  serious 
disturbances  of  the  normal  size  and  shape  of  lots 
and  of  the  normal  relation  of  property  lines  to 
streets  as  may  have  been  caused  by  the  public 
action  in  forcing  through  an  improvement.  These 
disturbances  constitute  a  situation  as  full  of  in- 
justice to  the  owner  of  the  lots  as  it  is  unsatis- 
factory from  the  point  of  view  of  the  public. 

CONCLUSIONS 

1.  In  the  absence  of  more  convincing  prece- 
dents too  much  reliance  should  not  be  placed  on 
excess  condemnation  as  a  method  of  distributing 
the  cost  of  public  improvements.  Where  the 
maximum  physical  benefit  from  an  improvement 
can  be  secured  under  the  present  restricted  power 
of  eminent  domain,  excess  taking  should  not  be 
resorted  to  except  in  rare  cases  where  it  would 
involve  few  expensive  buildings  and  where  the 
land  value  is  so  low  that  the  inevitable  tendency 
is  upward.  Rather  than  introduce  excess  taking 
for  the  purpose  chiefly  of  recouping  the  city's  in- 
vestment, the  highest  possible  return  should  be 
sought  by  the  American  method  of  special  assess- 
ment, already  proved  an  eminently  successful 
method  of  distributing  the  cost  of  the  acquisition 
of  land  for  public  purposes. 

2.  But  the  use  of  excess  taking  to  protect  the 
value,  both  economic  and  esthetic,  of  a  business 

136 


EXCESS   CONDEMNATION 

thoroughfare,  park,  or  parkway  is  sometimes 
essential  to  the  full  success  of  a  great  improve- 
ment. Only  by  its  use  in  some  cases  can  the  full 
advantage  of  an  improved  thoroughfare  be  se- 
cured by  providing  abutting  lots  of  size  and  shape 
adapted  for  suitable  structures.  Only  by  selling 
surplus  land  under  restrictions  can  the  city  most 
effectively  control  the  fringe  along  the  widened 
thoroughfare.  Whether  its  use  results  in  a  net 
financial  profit  or  not  is  a  secondary  consideration 
if  it  accomplishes  a  necessary  result  more  com- 
pletely and  efficiently  than  can  otherwise  be  done. 


37 


CHAPTER  V 

USE  OF  THE  POLICE  POWER  IN  THE 
EXECUTION  OF  A  CITY  PLAN 

THE  control  over  city  building  by  reason  of 
land  ownership  is  not  peculiar  to  a  govern- 
mental agency,  nor  does  it  depend  on  legis- 
lative authority.  Possession  of  land  is  the  only 
essential,  whether  that  possession  be  in  a  munici- 
pal corporation,  or  in  a  private  corporation  or- 
ganized as  a  land  company  for  the  sole  purpose 
of  directing  the  development  of  the  whole  or  parts 
of  a  city  in  accordance  with  a  plan. 

The  type  of  control  over  city  building  which 
we  are  now  to  consider,  however,  is  peculiar  to  a 
governmental  agency.  It  grows  out  of  the  duty 
of  the  administrative  body  representing  all  the 
people  to  protect  the  rights  of  all  from  individual 
aggression.  Through  the  process  of  acquiring 
lands  and  rights  in  land,  the  city  merely  by  wise 
use  of  its  possessions  and  without  the  exercise 
of  governmental  authority  may  induce  the  kind 
of  development  which  is  desirable.  This  process 
is  gradual  and  may  escape  public  notice.  But 
in  acting  as  the  guardian  of  the  community  the 
city  says  to  the  individual,  "Thou  shalt  not,'* 
and   by  ordinance  it   restrains  him  from  doing 

138 


USE   OF   THE    POLICE    POWER 

things  on  his  own  land  which  would  damage  the 
health,  safety,  or  morals  of  the  community. 

In  exercising  this  power  the  city  council  passes 
an  ordinance,  and  the  court  determines  whether 
the  purpose  of  the  ordinance  is  confined  to  those 
matters  which  have  a  real  and  substantial  rela- 
tion to  the  public  welfare  and  whether  the  ordi- 
nance is  reasonably  calculated  to  carry  out  this 
purpose.  These  are' the  only  tests  applied.  In  a 
limited  field  this  power  of  restraint  is  exercised 
without  question,  and  ordinances  have  the  strength 
of  custom  and  legal  decision  behind  them.  In  a 
still  larger  field  it  is  assumed  that  restraint  can  not 
be  exercised.  But  the  doubtful  ground  between 
is  constantly  being  encroached  upon  either  by  or- 
dinances restraining  the  power  of  the  individual  or 
by  decisions  denying  the  power  of  the  community. 
The  law  as  made  and  as  interpreted  by  the  courts 
is  constantly  changing  as  the  sentiment  of  the 
community  changes. 

A  too  intensive  use  of  land  is  the  chief  con- 
tributing cause  to  poor  housing,  and  shares  with 
poor  street  planning  the  responsibility  for  eco- 
nomic losses  consequent  on  every  kind  of  street 
congestion.  A  use  of  land  either  for  buildings 
unfit  structurally  for  habitation  or  for  other  pur- 
poses offensive  to  the  occupants  of  surrounding 
land  reacts  upon  the  use  of  the  latter,  tends  to 
instability  in  values,  and  may  blight  a  district 
otherwise  adapted  to  a  higher  economic  use,  as 
for  residence  or  retail  trade.     A  well  built  city 

139 


CARRYING   OUT  THE    CITY    PLAN 

would  control  by  means  of  segregation  the  use 
of  land  for  purposes  that  would  seriously  conflict 
with  those  of  other  owners,  and  would  insist  on 
sanitary  and  structural  excellence  for  its  homes. 
Public  control  of  all  such  matters  on  private  land 
is  accomplished  directly  under  the  police  power. 
A  complete  catalogue  of  municipal  regulations 
which  limit  the  use  of  private  land  is  not  within 
the  scope  of  this  chapter,  since  many  such  regu- 
lations have  little  or  no  influence  on  the  physical 
development  of  the  city;  but  those  which  most 
affect  the  city  plan  will  be  considered  under  (i) 
limitations  on  the  degree  to  which  the  intensive 
use  of  land  may  be  carried,  and  (2)  limitations 
on  the  degree  to  which  the  offensive  use  of  land 
may  be  carried. 

LIMITATIONS  ON  THE   DEGREE  TO  WHICH  THE 
INTENSIVE  USE  OF  LAND  MAY   BE  CARRIED 

I.  LIMITATIONS  ON  THE  HEIGHT  AND  SIZE  OF  BUILDINGS 

Most  modern  building  codes  interfere  with  the 
use  of  land  by  provisions  limiting  the  amount  of 
the  lot  which  can  be  occupied  and  the  height  to 
which  certain  classes  of  buildings  can  be  erected. 
Some  cities  impose  an  absolute  height  limit  beyond 
which  no  building  of  whatever  class  of  construction 
can  be  erected.*  Ordinances  of  this  character  are 
generally  sustained  by  the  courts  on  the  theory 
that  they  provide  a  reasonable  method  of  protect- 

*  See  Appendix,  p.  242. 
140 


USE    OF    THE    POLICE    POWER 

ing  the  safety  and  health  of  the  community.  This 
is  particularly  true  of  some  provisions  which  re- 
quire a  specific  allowance  of  space  between  non- 
fireproof  structures.  The  serious  nature  of  the 
"conflagration  risk"  involved  even  in  buildings 
of  fireproof  construction  as  established  by  the 
Baltimore  and  San  Francisco  fires  would  make 
this  theory  applicable  even  to  non-combustible 
structures  because  of  the  combustible  material 
which  they  contain.  Thus  the  absolute  height 
limitation  of  125  feet  imposed  in  Boston  on  build- 
ings of  all  classes  was  sustained  in  Welch  vs. 
Swasey,  193  Mass.  373: 

"The  erection  of  very  high  buildings  in  cities,  es- 
pecially upon  narrow  streets,  may  be  carried  so  far  as 
materially  to  exclude  sunshine,  light,  and  air  and  thus 
affect  public  health.  It  may  also  increase  the  danger 
to  persons  and  property  from  fires  and  be  a  subject  for 
legislation  on  that  ground.  These  are  proper  subjects 
for  consideration  in  determining  whether  in  a  given 
case  rights  of  property  in  the  use  of  land  should  be  in- 
terfered with  for  the  public  good.  .  .  .  Merely 
because  the  commission  has  come  to  a  conclusion  dif- 
ferent from  that  to  which  the  court  may  come  is  not 
in  itself  sufficient  to  declare  the  result  of  the  work  un- 
constitutional.*' 

The  decision  of  the  state  court  was  sustained 
by  the  supreme  court  of  the  United  States  in 
Welch  vs.  Swasey,    214  U.S.  91. 

It  is  believed  that  this  is  the  most  extreme 
ordinance  on  the  subject  of  height  limitations  of 

141 


CARRYING   OUT   THE    CITY    PLAN 

buildings  in  the  United  States  which  has  received 
judicial  approval  by  the  highest  courts.* 

How  much  further  an  ordinance  could  go  and 
still  be  held  within  the  police  power  can  be  de- 
cided only  by  framing  the  ordinance  and  getting 
it  tested.  Any  other  answer  to  the  question 
would  be  a  guess  which  is  likely  to  be  wrong. 
City  planners  ask,  "Can  buildings  be  limited  to  a 
height  not  greater  than  the  width  of  the  street  be- 
tween property  lines?'*  Building  regulations  in 
Washington,  D.  C,  provide  that  no  building  shall 
exceed  in  height  the  width  of  the  street  or  be  con- 
structed to  a  height  over  90  feet  on  a  residence 
street  or  1 10  feet  on  a  business  street,  except  that 
buildings  may  be  erected  to  130  feet  on  avenues 
160  feet  wide.  In  New  York  the  case  of  People 
vs.  D'Oench,  in  N.  Y.  359,  indicates  the  probable 
answer  to  the  question,  if  the  kind  of  buildings  is 
limited  to  those  used  or  intended  to  be  used  for 
dwellings  of  more  than  one  family.  The  question 
presented  to  the  court  in  that  case  was  whether  the 
act  of  1885  applied  to  hotels.  The  act  provided  that 
**the  height  of  all  dwelling  houses  and  of  all  houses 
used  or  intended  to  be  used  as  dwellings  for  more 
than  one  family  shall  not  exceed  80  feet  in  streets 
and  avenues  exceeding  60  feet  in  width."  The 
court  found  that  there  was  no  doubt  of  the  com- 
petency of  the  legislature  in  the  exercise  of  the 
police  power  under  the  constitution  to  pass  such 
an  act,  but  that  the  act  did  not  apply  to  hotels. 

*  See  pp.  146  flF.  for  further  discussion  of  this  law. 
142 


USE    OF    THE    POLICE    POWER 

Can  wooden  buildings  used  for  residence  be 
limited  to  two  stories?  Building  regulations  of 
1909  for  Memphis  contain  just  that  provision  and 
there  is  little  doubt  that  the  ordinance  would  be 
sustained. 

Regulations  governing  the  size  of  a  building  in 
relation  to  its  lot  are  not  so  generally  adopted  and 
are  much  more  limited  in  application.  An  exam- 
ination of  the  building  codes  of  the  51  cities  of 
over  100,000  population  shows  that  at  least  18, 
and  among  them  three  of  the  10  largest  cities  in 
the  country,  have  no  ordinances  on  the  subject. 
In  several  others  the  regulation  is  of  the  mildest 
kind;  as,  for  instance,  in  the  tenement  house  act 
for  cities  of  Massachusetts  (Acts  191 3,  Chapter 
786)  which  provides  that  no  tenement  house  of 
third  class  construction  shall  be  erected  nearer 
than  5  feet  to  adjoining  lot  line;  but  it  may  be 
constructed  to  the  lot  line  if  protected  by  a  fire 
wall.  A  provision  found  in  several  codes  limits 
the  size  only  of  tenement  houses  and  apartment 
houses  by  specifying  the  proportion  of  lot  which 
may  be  built  upon,  varying  in  the  case  of  a  corner 
lot  from  75  per  cent  to  95  per  cent,  and  in  the  case 
of  an  interior  lot  from  60  per  cent  to  80  per  cent. 
The  building  code  of  Baltimore  provides  that 
there  shall  not  be  less  than  20  feet  between  frame 
buildings,  and  no  other  building  of  any  kind  shall 
be  built  within  20  feet  of  any  existing  frame 
building  on  the  next  lot. 

A  bill  presented  to  the  legislature  of  the  state 
143 


CARRYING   OUT   THE    CITY    PLAN 

of  Washington  in  191 1*  proposed  a  considerable 
extension  of  the  right  to  regulate  the  use  of  pri- 
vate property  by  requiring  that  in  every  newly 
developed  area  containing  five  acres  or  more  there 
should  be  a  reservation  of  10  per  cent  of  the  land 
for  public  open  space,  after  deducting  such  land  as 
would  be  required  for  street  purposes.  It  is  clear 
that  a  most  liberal  interpretation  of  the  police 
power  would  not  justify  a  regulation  which  in 
reality  amounts  to  a  taking  of  private  property 
without  compensation. 

That  the  courts  will  not  sanction  any  and  every 
legislative  regulation  is  clear  in  several  decisions 
in  which  the  validity  of  ordinances  specifying  the 
degree  of  intensity  with  which  property  should 
be  used  have  been  successfully  attacked.  The 
supreme  court  of  California  in  19 10,  in  the  case 
of  Wilson  et  al.  vs.  City  of  Alhambra,  158  Cal.  430, 
enjoined  the  enforcing  of  an  ordinance  which  com- 
pelled the  owner  of  six  acres  of  land  to  lay  out  a 
street  over  his  land  not  less  than  50  feet  wide. 
The  street  in  this  case  was  an  extension  of  an  ex- 
isting street  which  was  only  40  feet  wide.  The 
court  held  merely  that  to  require  an  owner  to 
build  a  street  wider  than  many  of  the  existing 
streets  in  the  town  was  an  unreasonable  exercise 
of  the  police  power. 

*  House  Bill  No.  81,  12th  Session.  (The  bill  was  not  reached  in 
committee.) 


144 


USE    OF    THE    POLICE    POWER 
2.    DIFFERENTIATED   ZONES   OF   HEIGHT    LIMITATION 

A  most  important  question  to  the  city  planner 
is  to  what  extent  American  municipaHties  may,  in 
the  exercise  of  the  police  power,  copy  regulations 
common  in  German  cities  and  prescribe  different 
building  regulations  for  different  districts  of  a  city. 
The  principle  is  not  new  in  the  United  States. 
Many  cities  have  at  least  two  building  districts 
from  one  of  which  non-fireproof  buildings  are  ex- 
cluded. The  constitutionality  of  fire  zone  ordi- 
nances is  universally  upheld. 

The  building  regulations  in  the  city  of  Koln  are 
taken  as  illustrating  the  German  system,  because 
they  are  simple  compared  with  the  >  regulations  in 
some  other  German  cities.  The  city  is  divided 
into  four  building  districts,  the  first  of  which 
comprises  the  area  inside  the  old  city  walls  and 
contains  the  central  business  district.  In  this  dis- 
trict buildings  may  have  four  stories  and  a  height 
of  66^2  feet,  and  may  occupy  75  per  cent  of  an 
inner  lot  and  80  per  cent  of  a  corner  lot.  The 
second  district  is  made  up  of  the  more  closely 
built  suburbs  of  urban  character,  and  here  build- 
ings may  have  not  more  than  three  stories,  a 
height  of  not  more  than  52>^  feet,  and  may  oc- 
cupy 75  per  cent  of  the  lot  if  the  building  does  not 
exceed  26  feet  in  height,  but  only  65  per  cent 
otherwise.  In  the  third  district  the  buildings  are 
limited  to  two  stories,  a  height  of  38  feet,  and 
may  occupy  65  per  cent  of  the  lot  if  they  do  not 
II  145 


CARRYING   OUT   THE   CITY    PLAN 

exceed  20  feet  in  height,  and  only  50  per  cent 
otherwise.  The  fourth  district  is  devoted  to  de- 
tached buildings  or  villas  of  two  stories  and  52^^ 
feet  in  height.  Only  40  per  cent  of  the  site  may 
be  covered  by  buildings,  or  50  per  cent  if  the  site 
is  a  corner  lot.  In  this  district  also  there  must  be 
at  least  33  feet  between  buildings  and  i6>^  feet 
from  the  boundary  of  the  lots  to  the  buildings. 
Reference  to  the  map  of  Koln  will  show  that  the 
districts  have  been  so  located  that  just  outside 
the  old  walls  of  the  city  is  a  broad  band  of  open 
villa  buildings,  and  that  the  more  closely  built 
suburban  districts  are  also  separated  by  the  same 
open  style  of  construction. 

An  approach  to  the  German  system  is  found 
in  Boston  and  in  Washington.  The  Massachu- 
setts commission  on  height  of  buildings  author- 
ized under  chapter  333  of  the  statutes  of  1904, 
was  empowered  merely  to  divide  the  city  of  Bos- 
ton into  districts  of  two  classes  in  such  manner 
that  the  parts  of  the  city  in  which  the  greater 
part  of  the  buildings  were  used  for  business  or 
commercial  purposes  should  be  included  in  Dis- 
trict A  and  the  rest  of  the  city  in  District  B.  The 
statute  itself  prescribed  the  limit  of  125  feet  for 
buildings  in  District  A  and  further  provided  that 
in  District  B  no  buildings  should  be  over  80  feet. 
Under  a  later  act,  chapter  383  of  the  statutes  of 
1905,  the  commission  was  empowered  to  desig- 
nate that  part  of  District  B  where  buildings  ex- 
ceeding 80  feet  and'  not  exceeding  100  feet  could 

146 


USE   OF   THE    POLICE    POWER 

be  erected;  and  there  was  a  further  provision  in 
this  act  which  Hmited  the  height  of  buildings  in 
certain  designated  districts  to  70  feet.  The  com- 
mission's first  report  fixed  the  boundaries  of  Dis- 
trict A,  and  the  second  report  regulated  the  height 
of  buildings  in  District  B  in  accordance  with  the 
width  of  the  street  and  the  width  of  the  building. 
On  all  streets  over  64  feet  wide  the  buildings  could 
be  erected  to  one  and  one-half  times  the  width 
of  the  street  up  to  100  feet,  provided  that  their 
height  did  not  exceed  twice  their  narrowest  width. 
Boston's  several  zones  are  more  highly  differen- 
tiated than  even  those  of  Koln,  but  the  Koln  regu- 
lations are  much  more  severe  than  the  most  dras- 
tic of  the  Boston  provisions.  Thus  Boston  has  a 
narrowly  limited  business  zone  and  several  other 
zones  differing,  not  in  accordance  with  the  dis- 
tance from  the  business  center,  but  in  accordance 
with  the  width  of  the  street  and  width  of  the 
buildings.  The  commission's  report  and  the 
decisions  of  both  the  state  and  federal  courts 
sustaining  it  are  unique  in  the  United  States. 
The  court  held  that  in  the  exercise  of  the  police 
power  the  legislature  could  determine  an  abso- 
lute height  limitation  for  all  buildings  in  the  city, 
and  could  delegate  to  a  commission  the  right  to 
fix  the  boundaries  of  building  districts  and  to  es- 
tablish varying  height  limitations  in  one  of  these 
districts.* 

*  For  text  of  the  acts,  see  Appendix,  pp.  221,  223. 
For  text  of  the  decisions,  see  Appendix,  pp.  219,  226  ff. 
147 


CARRYING   OUT   THE    CITY    PLAN 

This  decision  has  been  generally  accepted  as  of 
great  importance  in  working  out  some  of  the  de- 
tails of  city  planning.  There  is  not  involved  in 
it  the  question  of  the  amount  of  space  which  can 
be  occupied  by  buildings  in  the  different  building 
districts,  and  for  this  reason  the  decision  is  not 
a  complete  precedent  for  the  introduction  of  the 
zoning  system  of  Germany  in  the  United  States, 
but  it  is  likely  that  the  Massachusetts  court  would 
uphold  an  ordinance  framed  to  include  all  the  de- 
tails of  the  Koln  system. 

If  the  legislature  can  establish  two  building  dis- 
tricts it  certainly  can  establish  three  or  even  four. 
If  its  authority  to  delegate  to  a  commission  power 
to  regulate  the  height  of  buildings  in  each  district 
is  sustained  by  the  courts  on  the  ground  that  it  is  a 
reasonable  way  of  securing  an  adequate  amount  of 
light  and  air,  it  should  follow  that  the  power  to 
regulate  the  amount  of  space  that  each  building 
may  occupy  in  a  horizontal  direction  can  also 
be  delegated.  Building  codes  prescribe  the  dis- 
tance between  buildings  or  the  open  space  which 
must  attach  to  each  building,  and  this  regulation 
is  sanctioned  by  the  decisions.  It  is  as  logical 
to  provide  a  larger  proportion  of  open  space  in  dis- 
tricts where  the  demand  for  land  is  less  as  it  is  to 
provide  less  height  for  buildings  in  such  districts. 
An  ordinance  which  prescribes  for  different  build- 
ing districts  varying  amounts  of  land  which  may 
be  occupied,  as  well  as  varying  heights  of  build- 
ings, is  much  more  calculated  to  lessen  the  fire 

148 


USE    OF   THE    POLICE    POWER 

risk  and  to  safeguard  the  health  of  the  community 
than  one  which  is  operative  only  in  the  area  of 
greatest  land  values  and  most  congested  occu- 
pancy. The  burden  is  on  the  private  owner  to  show 
that  the  legislative  act  is  unreasonable.  That  the 
courts  will  be  slow  to  declare  unreasonable  the 
legislative  finding  has  been  established  in  numer- 
ous decisions,  and  applying  this  test  of  reason- 
ableness to  an  ordinance  which  would  include  the 
principle  of  the  zone  system  of  Koln  it  is  difficult 
to  see  how  it  could  be  successfully  questioned. 

It  is  quite  another  question  whether  it  would 
be  expedient  to  introduce  such  an  ordinance. 
Local  conditions  might  be  such  that  property 
owners  would  be  right  in  refusing  to  entrust  so 
important  a  question  to  a  municipal  administra- 
tion or  to  a  commission  appointed  by  that  admin- 
istration. In  purchasing  lots  they  may  cheerfully 
submit  to  the  restrictions  imposed  by  a  land 
company,  no  matter  how  much  their  rights  are 
curtailed.  They  may  agree  to  set  back  their 
buildings  20  feet  from  the  line  of  their  property; 
they  may  agree  to  build  nothing  on  the  land  ex- 
cept a  dwelling  house  of  certain  value  and  to  have 
the  rest  of  it  set  out  in  gardens,  and  even  to  submit 
the  position  and  design  of  their  houses,  hedges, 
fences,  and  gates  for  approval  to  a  small  commit- 
tee representing  the  vendors  of  the  tract.  Such 
restrictions,  when  drawn  to  meet  the  conditions 
of  the  real  estate  market,  attract  buyers  rather 
than  repel  them,  because  these  restrictions  upon 

149 


CARRYING   OUT  THE    CITY    PLAN 

the  liberty  of  individual  lot  owners  protect  each 
against  the  danger  of  certain  injurious  actions  by 
any  neighbors.  Yet  a  suggestion  of  control  from 
municipal  authorities  might  raise  a  strong  protest. 
It  is  an  interesting  speculation  whether  some  form 
of  district  building  regulations  subject  to  a  referen- 
dum within  each  district  will  not  meet  American 
conditions  successfully. 

LIMITATIONS  ON  THE   DEGREE  TO  WHICH  THE 
OFFENSIVE  USE  OF  LAND  MAY   BE  CARRIED 

The  right  of  the  municipality  in  any  given  case 
to  suppress  uses  of  land  depends  on  the  language 
of  its  charter,  but  under  a  universal  charter  pro- 
vision a  municipality  may  protect  the  general 
welfare  of  its  people,  and  many  uses  of  land  are 
enjoined  under  this  general  power. 

I.    USES   OF  LAND  WHICH     IMPAIR    THE    FREE    USE   OF    A 
PUBLIC   HIGHWAY 

Encroachments  on  the  highway  of  signs,  awn- 
ings, posts,  porches,  stoops,  stands,  and  so  forth, 
are  generally  included  among  those  offensive  uses 
of  land  which  are  prohibited  in  the  exercise  of  the 
police  power.  If  their  use  obstructs  the  street 
or  diminishes  the  space  available  for  walking,  or 
impedes  traffic,  they  may  be  abated  or  indicted 
as  nuisances,  and  it  is  not  necessary  that  the  com- 
fort of  the  public  should  be  interfered  with  ma- 
terially.* 

*  State  vs.  Berdetta,  73  Ind.  185. 
I$0 


USE    OF   THE    POLICE    POWER 

But  the  right  of  suppression  is  as  well  put  on 
other  grounds.  The  municipality  either  owns  the 
land  in  the  highway  or  possesses  an  easement  in 
the  land  for  highway  purposes,  and  can  prohibit 
by  virtue  of  this  ownership  any  use  inconsistent 
with  those  purposes.  The  case  of  the  Fifth  Ave- 
nue Coach  Co.  vs.  City  of  New  York,  in  N.  Y. 
Supp.  759,  is  in  point.*  The  action  was  brought 
by  the  plaintiff  coach  company  to  enjoin  New 
York  City  from  interfering  with  advertising  signs 
displayed  on  the  outside  of  their  auto  stages  which 
travel  on  Fifth  Avenue.  The  court  denied  the 
injunction  on  the  ground  that  the  plaintiff  did 
not  show  a  clear  right  to  warrant  the  interference 
of  the  court,  since  the  ordinance  of  the  city  under 
which  the  advertising  of  the  plaintiff  company  was 
prohibited  was  a  reasonable  regulation  of  the  use 
of  the  street  and  did  not  operate  to  impair  the 
plaintiff's  franchise.  In  discussing  the  nature  of 
the  plaintiff's  advertising  business,  however,  the 
court  said: 

"It  is  along  the  entrance  to  parks  and  along  the 
parks  themselves  preserved  to  attract  lovers  of  nature 
and  the  beautiful  that  these  unnatural  and  inartistic 
moving  picture  signs  are  displayed.  But  out  of  place, 
disagreeable  and  offensive  though  they  are  both  to  the 
civic  pride  and  esthetic  taste,  and  although  the  ten- 
dency of  equitable  jurisprudence  is  to  extend  its  juris- 
diction to  include  this  situation,  the  fact  remains  that 
no  authority  now  exists  which  will  justify  the  legal  con- 
*  Affirmed  in  194  N.  Y.  19. 


CARRYING   OUT   THE    CITY    PLAN 

elusion   that   the   plaintiff's   signs   now   constitute   a 
nuisance/' 

The  decision  shows  a  tendency  to  give  in- 
creasing regard  to  esthetic  considerations,  since 
it  holds  the  ordinance  a  reasonable  street  regula- 
tion. In  the  same  way,  without  resorting  to  the 
police  power,  the  municipality  may  regulate  the 
use  of  streets  for  poles  and  wires,  and  may  compel 
the  placing  of  wires  underground  as  a  condition 
of  the  franchise. 

2.    USES   OF    LAND  WHICH    CONSTITUTE    A   NUISANCE 

A  use  of  land  which  is  inherently  unlawful  and 
unprofitable  and  dangerous  to  the  safety  and 
health  or  offensive  to  the  morals  of  a  community 
may  be  treated  as  a  nuisance,  per  se.  Rotten 
or  decayed  food  or  meat,  infected  bedding  or 
clothing,  mad  dogs,  animals  affected  with  con- 
tagious diseases,  and  imminently  dangerous  struc- 
tures, are  conspicuous  instances  of  nuisances  per 
se.  Such  conditions  may  be  summarily  abated 
without  previous  notice.  A  use  of  land  which 
does  not  in  itself  constitute  a  nuisance,  but  may 
become  so  by  reason  of  its  locality  or  the  con- 
ditions surrounding  its  maintenance,  may  be 
prohibited  altogether  or  confined  to  certain  parts 
of  a  municipality. 

Certain  occupations  are  so  generally  recognized 
as  belonging  to  the  objectionable  class,  either  be- 
cause of  the  odors  or  noises  which  are  inseparable 
from  them,  although  conducted  in  the  most  care- 

152 


USE    OF   THE    POLICE    POWER 

ful  manner,  that  they  are  specifically  named  in 
municipal  charters  as  nuisances  which  the  mu- 
nicipality may  abate.  Thus,  slaughter  houses, 
glue  factories,  soap  factories,  canning  factories, 
smelting  works,  rendering  establishments,  stables, 
and  fertilizer  factories  are  generally  included  in 
this  class.*  Some  of  these  ordinances  have  been 
tested  by  the  courts  and  found  to  be  a  reasonable 
exercise  of  the  police  power: 
Rendering  establishments:  Grand  Rapids  vs.  Weiden, 

97  Mich.  82 
Meigs  vs.  Lister,  23  N.  J. 

Eq.  199 
Slaughterhouses:  Harmison  et  al.  vs.  City  of 

Lewiston,  46  lll.App.  164 
Ex  parte  Heilbron,  65  Cal. 

609 
Bailing  w.  City  of  Evanston, 

144  Ind.  644 
Smelting  works:  Appeal  of  Pa.  Lead  Co.,  96 

Pa.  1 16 
Stables:  Shirasw. dinger,  50  la.  571 

Fertilizer  factories:  Evans  vs.  Fertilizer  Co.,  160 

Pa.  209 
The    emission     of    dense 

smoke:  People  vs.  Lewis,  86  Mich. 

273 
Atlantic  City  w.  France,  74 

N.  J.  Law  389 
Harmon    vs.  Chicago,    no 

111.  400 

*  Charter  of  City  of  Dallas,  Sect.  5,  Par.  12.     Charter  of  Detroit, 
Chap.  7,  Sect.  44.   Charter  of  Portland,  Ore.,  Art.  4,  Sect.  73,  Par.  27. 

153 


CARRYING   OUT   THE    CITY    PLAN 

Other  courts  have  come  to  different  conclusions 
with  the  same  or  very  similar  ordinances  applied 
under  different  conditions,  the  courts  holding  that 
a  declaration  by  municipal  authorities  that  an 
occupation  is  a  nuisance  does  not  make  it  so  in 
fact: 

Slaughter  houses:  Wreford  w.  People,  14  Mich. 

Stables:  Phillips  w.  City  of  Denver, 

19  Col.  179 
The    emission    of    dense 

smoke:  St.     Louis    vs.   Heitzeberg 

Packing  Co.,  141  Mo.  375 
St.    Paul    vs,  Gilfillan,    36 
Minn.  298 

3.    DIFFERENTIATED   DISTRICT   REGULATIONS 

Legislation  in  Massachusetts  gives  a  further  right 
by  authorizing  boards  of  health  of  cities  or  towns  "  to 
assign  certain  places  for  the  exercise  of  any  trade 
or  employment  which  is  a  nuisance  or  hurtful  to 
the  inhabitants,  injurious  to  their  estates,  danger- 
ous to  the  public  health,  or  is  attended  by  noisome 
and  injurious  odors.''  They  may  also  prohibit 
"the  exercise  thereof  with  the  limits  of  the  city  or 
town  or  in  places  not  so  assigned."* 

It  does  not  seem  to  have  been  the  practice  of 
Massachusetts  boards  of  health  to  exercise  the 
right  of  assigning  offensive  occupations  to  certain 
parts  of  the  city,  and  therefore  the  question  of  the 

*  Massachusetts  Revised  Laws,  Chapter  75,  Section  91. 
154 


USE   OF   THE    POLICE    POWER 

right  of  the  community  to  impair  the  value  of 
private  property  by  assigning  objectionable  oc- 
cupations to  certain  districts  has  not  been  tested. 
The  practical  answer  to  this  objection  to  segre- 
gating offensive  occupations  within  defined  limits 
is  that  they  would  be  located  only  in  those  por- 
tions of  the  city  where  the  value  of  the  land  or  the 
character  of  occupation  showed  that  legal  actions 
by  property  owners  included  in  the  district  would 
be  unlikely,  and,  if  brought,  would  be  either  dis- 
missed or  a  nominal  amount  of  damages  be 
awarded. 

Los  Angeles  has  largely  applied  the  principle  of 
separating  industrial  districts  from  residential  dis- 
tricts. By  an  ordinance  adopted  in  1909  seven 
industrial  districts  were  established  in  the  city, 
and  by  an  ordinance  of  the  next  year  all  the  rest 
of  the  city,  with  unimportant  exceptions,  was  de- 
clared to  be  a  residential  district.  The  ordinance 
further  provides  that  industrial  occupations  may 
be  permitted  in  certain  excepted  portions  of  the 
residence  district,  and  the  right  is  reserved  to  ex- 
cept other  portions  as  conditions  warrant.  It  is 
made  unlawful  for  any  person,  firm,  or  corpora- 
tion **to  erect,  establish,  maintain  or  carry  on 
within  the  residential  district  described  in  sec- 
tion I  of  the  ordinance  any  stone  crusher,  rolling 
mill,  carpet  beating  establishment,  fireworks  fac- 
tory, soap  factory,  or  any  other  works  or  factory 
where  power  other  than  animal  power  is  used  to 
operate,  or  in  the  operation  of  the  same,  or  any 

155 


CARRYING   OUT  THE    CITY    PLAN 

hay  barn,  wood  yard,  lumber  yard,  public  laundry 
or  wash  house/' 

The  ordinance  was  tested  in  the  case  of  Ex 
Parte  Quong  Wo.*  The  petitioner,  Quong  Wo, 
who  had  been  convicted  and  imprisoned  for  carry- 
ing on  a  public  laundry  and  wash  house  in  a 
residence  district,  sought  to  be  discharged  from 
custody.  The  court  dismissed  the  application  for  a 
writ  of  habeas  corpus,  finding  that  it  was  within 
the  lawful  exercise  of  the  police  power  to  confine 
the  business  of  operating  a  public  laundry  or  wash 
house  within  defined  limits.  The  following  lang- 
uage of  the  decision  is  particularly  in  point : 

"There  can  be  no  question  that  the  power  to  regu- 
late the  carrying  on  of  certain  lawful  occupations  in  a 
city  includes  the  power  to  confine  the  carrying  on  of 
the  same  to  certain  limits  whenever  such  restriction 
may  reasonably  be  found  necessary  to  subserve  the 
ends  for  which  the  police  power  exists.  .  .  .  It  is 
primarily  for  the  legislative  body  clothed  with  this 
power  to  determine  when  such  regulations  are  essen- 
tial, and  its  determination  in  this  regard,  in  view  of  its 
better  knowledge  of  all  the  circumstances  and  the  pre- 
sumption that  it  is  acting  with  a  due  regard  for  the 
rights  of  all  parties  will  not  be  disturbed  in  the  courts, 
unless  it  can  plainly  be  seen  that  the  regulation  has  no 
relation  to  the  ends  above  stated,  but  is  a  clear  in- 
vasion of  personal  or  property  rights  under  the  guise  of 
police  regulation.'' 

This  decision  was  reviewed  and  upheld  in  the 

*  i6i  Gal.  220. 

156 


USE    OF   THE    POLICE    POWER 

case  of  Montgomery's  application  for  a  writ  of 
habeas  corpus,  the  only  difference  in  the  cases 
being  that  the  petitioner  in  the  latter  case  was 
imprisoned  for  carrying  on  or  maintaining  a 
lumber  yard  within  the  residence  district.*  The 
contention  was  made  by  Montgomery  that  a 
lumber  yard  was  not  one  of  those  specific  occupa- 
tions which  could  be  regulated  under  the  exercise 
of  the  police  power  since  it  was  not  enumerated 
in  the  charter  of  the  city.  The  court  found 
specifically  that  if  the  ordinance  could  be  upheld 
under  the  general  police  power  of  the  city,  it 
would  not  fall  merely  because  the  city  had  speci- 
fic authority  under  its  charter  to  suppress  certain 
other  kinds  of  business. 

A  similar  ordinance  has  been  proposed  for  the 
city  of  St.  Paul:t 

Section  2.  It  shall  be  unlawful  to  establish  or 
maintain  within  said  district  any  carpet  beating  es- 
tablishment, stone  crusher,  rolling  or  planing  mill,  pub- 
lic laundry,  fireworks,  soap  or  cigar  factory,  machine 
shop,  slaughter  house  or  rendering  works,  brewery, 
distillery,  tanning,  furrier  or  canning  plants,  or  any 
hospital  or  sanitarium,  or  asylum  for  defectives,  or  any 
establishment,  works  or  factory  which  by  reason  of 
noise,  offensive  smell  or  vapor,  or  unsanitary  effect, 
may  be  unhealthy  or  disturbing  or  injurious  to  persons 
or  property  within  said  district. 

Section  3.  Any  person  violating  this  ordinance 
shall  be  deemed  guilty  of  misdemeanor  and  punished  by 

*  163  Cal.  457. 

t  Also  see  Acts  of  Minnesota,  191 3,  Chaps.  98  and  420;  Acts  of 
New  York,  1913,  Chap.  774;  Acts  of  Wisconsin,  191 3.  Chap.  743. 

157 


CARRYING   OUT   THE    CITY    PLAN 

a  fine  of  not  less  than  twenty-five,  or  more  than  one 
hundred  dollars,  or  by  imprisonment  of  not  more  than 
ninety  days,  or  both  fine  and  imprisonment.  Each  day 
of  the  violation  of  the  prohibition  herein  contained  shall 
be  construed  as  a  separate  offense.* 

4.     OFFENSIVE   USES   OF    LAND   NOT    SUBJECT  TO    MUNI- 
CIPAL  REGULATION 

There  remains  a  class  of  occupation  which  im- 
perils neither  the  safety  nor  health  of  the  com- 
munity and  yet  is  very  damaging  to  the  value  of 
land  as  a  place  of  residence.  A  business  that  pro- 
duces little  or  no  smoke  or  noise  and  no  odors  that 
are  unhealthful  may,  because  of  the  appearance 
of  the  buildings  which  it  occupies  or  the  class 
of  persons  which  it  attracts,  be  an  undesirable 
neighbor.  This  is  the  sort  of  occupation  that  the 
developers  of  a  high  class  residential  district  ex- 
clude by  restrictions  in  the  deed,  but  the  police 
power  has  never  been  extended  to  preventing  or 
removing  structures  or  occupations  which  merely 
disfigure  the  city's  physical  aspect  or  which  bring 
together  people  who  may  be  socially  uncongenial. 
It  is  not  held  to  be  within  the  scope  of  the  police 
power  to  guard  the  amenities  of  life. 

The  Missouri  legislature  of  1891  gave  authority  to 
municipalities  to  exclude  by  ordinance  *'the  insti- 
tution and  maintenance  of  any  business  avocation 
on  the  property  fronting  on  boulevards  .  .  . 
and  to  establish  a  building  line  to  which  all  build- 

*  For  further  references  see  Veiller,  Lawrence:  A  Model  Hous- 
ing Law,  pp.  62  ff.  See  also  "Protecting  Residential  Districts,"  a 
paper  read  by  Lawrence  Veiller  at  the  Sixth  National  Conference  on 
City  Planning,  Toronto,  19 14. 

158 


USE   OF   THE    POLICE    POWER 

ings  and  structures  shall  conform."  Ordinances 
based  on  this  legislation  were  tested  in  several 
cases  in  the  supreme  court  and  in  each  case  de- 
clared unconstitutional  on  the  ground  that  the 
legislation  deprived  owners  of  property  without 
due  process  of  law  and  made  no  provision  for  com- 
pensation. The  theory  was  advanced  by  attor- 
neys for  the  city  that  the  ordinance  was  passed  in 
pursuance  of  the  police  power,  but  this  suggestion 
was  held  thoroughly  untenable  by  the  court.* 

An  ordinance  of  the  city  of  Baltimore  prohibited 
the  erection  of  new  buildings  without  a  permit, 
and  directed  that  the  permit  should  not  be  granted 
unless  in  the  judgment  of  the  appellate  tax  court 
''the  size,  general  character,  and  appearance  of 
the  building  will  conform  to  the  general  character 
of  the  buildings  previously  erected  in  the  local- 
ity and  will  not  tend  to  depreciate  the  value  of 
the  surrounding  improved  and  unimproved  prop- 
erty.'' In  a  well  considered  decision  this  ordi- 
nance was  held  ultra  vires. '\ 

An  ordinance  of  Bay  St.  Louis,  Mississippi,  pro- 
hibited the  building  of  houses,  shanties,  huts,  or 
tents  between  the  road  and  sea  without  a  special 
permit,  except  such  as  are  known  as  summer 
houses  for  shade  only,  and  "all  houses  built  with- 
out a  permit  shall  be  nuisances.''  The  road  men- 
tioned in  the  ordinance  was  much  used  by  pleasure 
vehicles,  and  on  the  land  side  were  many  expensive 

*  For  cases  see  St.  Loiiis  vs.  Hill,  1 16  Mo.  527.  St.  Louis  vs.  Dorr, 
145  Mo.  466. 

t  Bostock  vs.  Sams,  95  Md.  400. 
159 


CARRYING   OUT  THE    CITY    PLAN 

houses.  The  ordinance  was  obviously  designed 
to  preserve  the  view  of  the  gulf  from  the  road  and 
prevent  the  obstruction  of  the  cool  winds  from  the 
water.  The  court  found  the  ordinance  uncon- 
stitutional, and  in  discussing  the  theory  that  it 
could  be  defended  in  the  exercise  of  the  police 
power,  said,  "There  is  scarcely  a  suggestion  that 
the  object  of  the  ordinance  is  other  than  to  en- 
hance the  beauty  of  the  street."* 

Offenses  to  the  sense  of  smell  and  to  the  sense 
of  hearing  are  enjoined  on  the  ground  of  health, 
but  the  medical  fraternity  has  not  convinced  the 
legal  fraternity  that  offenses  to  the  sense  of  sight 
are  damaging  to  the  health.  It  should  be  a  very 
interesting  task  to  frame  a  medico-legal  brief 
which  would  convince  a  reputable  tribunal  of  the 
necessity  to  give  a  broader  meaning  to  the  phrase 
"public  welfare,"  and  we  should  have  a  decision 
which  would  be  as  influential  as  the  case  of  Welch 
vs.  Swasey  in  Massachusetts.  One  of  the  greatest 
authorities  on  police  power  says:  "It  is  conceded 
that  the  police  power  is  adequate  to  restrain  offen- 
sive noises  and  odors.  A  similar  protection  to  the 
eye,  it  is  conceived,  would  not  establish  a  new 
principle  but  carry  a  recognized  principle  to  fur- 
ther application."!  The  same  authority  recog- 
nized the  difficulty  of  administering  such  an  ex- 
tension of  the  power  as  applied  to  the  elimination 

*  Questini  vs.  Bay  St.  Louis,  64  Miss.  483. 

t  Freund,  Ernst:  The  Police  Power,  p.  166.  Chicago,  Callaghan 
and  Co.,  1904. 

160 


USE    OF   THE    POLICE    POWER 

of  objectionable  signs:  "Such  regulation  would 
have  to  define  what  signs  are  prohibited  and 
some  test  would  have  to  be  discovered  by  which 
to  discriminate  that  which  is  merely  unesthetic 
from  that  which  is  so  offensive  as  to  fall  under  the 
police  power,  since  the  prohibition  of  all  adver- 
tising signs  would  be  out  of  the  question." 

Some  forms  of  advertising  which  are  now  al- 
lowed in  practically  every  city  in  the  United 
States  could  be  enjoined  on  the  ground  of  endan- 
gering public  health.  The  custom,  for  instance, 
of  covering  the  whole  side  or  front  of  a  building 
with  advertisements  pictured  or  lettered  in  elec- 
tric lights  might  be  enjoined  as  an  injury  to  health, 
since  at  least  the  glare  interferes  with  the  sleep  of 
occupants  of  buildings  facing  such  a  sign.  But, 
generally  speaking,  the  decisions  on  this  phase  of 
the  general  subject  of  the  police  power  as  illus- 
trated by  the  bill-board  cases  which  we  are  about 
to  discuss  are  conclusive  that  whatever  may  be  the 
effect  on  the  judiciary  from  the  increase  in  es- 
thetic sentiment,  the  great  consensus  of  opinion 
is  at  present  against  the  exercise  of  the  police 
power  to  restrain  that  form  of  use  of  land  which  is 
merely  offensive  to  the  sense  of  sight. 

Bill-boards.  The  bill-board  evil  is  the  classic 
illustration  of  off ensiveness  to  even  the  most  poorly 
nourished  artistic  sense.  Several  ordinances  of  one 
kind  or  another  have  been  attempted  to  legislate  it 

13  i6i 

I 


CARRYING   OUT   THE    CITY    PLAN 

out  of  existence.  Park  commissions  have  attempted 
to  protect  the  neighborhood  of  parks  and  park- 
ways by  an  ordinance  of  exclusion.  But  every 
drastic  measure  has  been  successfully  thwarted 
by  repeated  court  decisions.* 

A  very  recent  Missouri  casef  has  been  generally 
understood  to  announce  a  different  rule  and  to 
uphold  the  prohibition  of  bill-boards  as  an  exer- 
cise of  the  police  power.  The  case  arose  under  an 
ordinance  of  the  city  of  St.  Louis  of  which  the 
following  are  the  essential  provisions: 

1 .  No  bill-board  hereafter  erected  shall  exceed  four- 
teen feet  in  height  above  the  ground. 

2.  All  bill-boards  shall  have  an  open  space  at  the 
bottom  of  at  least  four  feet. 

3.  No  bill-board  shall  exceed  five  hundred  feet  in 
area. 

4.  No  bill-board  shall  approach  the  street  line  nearer 
than  fifteen  feet  or  the  side  line  of  the  lot  on  which  it 
stands  nearer  than  six  feet. 

Besides  these  structural  requirements  there 
seems  to  be  a  discrimination  in  the  matter  of 
license  fees  against  structures  used  as  bill-boards; 
for  although  no  fees  are  charged  for  fences  which 
may  be  used  for  bill  posting,  a  fee  is  imposed  for 
the  erection  of  bill-boards;  and  although  a  fee  of 
only  ^i.oo  is  charged  for  the  alteration  or  erection 
of  buildings  costing  less  than  $1,000,  a  fee  of  $  100 
is  charged  for  a  bill-board  50  feet  long,  the  total 

*  Appendix,  p.  246. 

t  St.  Louis  Gunning  Advertising  Co.  vs.  St.  Louis. 
162 


USE    OF   THE    POLICE    POWER 

cost  of  which  may  not  exceed  $  lOO.  The  same  dis- 
proportionate charges  are  made  for  the  erection 
or  alteration  of  signs  on  the  top  of  buildings. 

The  ordinance  was  attacked  on  every  possible 
ground :  First,  as  a  taking  of  property  without  due 
process  of  law;  second,  as  denying  the  equal  pro- 
tection of  the  laws  by  prescribing  restrictions 
against  structures  on  which  advertising  is  dis- 
played, but  not  against  similar  ones  structurally 
as  objectionable, — in  other  words,  discriminating 
against  the  kind  of  use  to  which  a  structure  is 
put;  third,  as  taking  property  without  compensa- 
tion and  without  public  necessity.  The  case  was 
first  heard  before  a  justice  of  the  supreme  court, 
and  his  finding  that  the  ordinance  was  a  reason- 
able exercise  of  the  police  power  was  upheld  by  the 
full  bench  with  two  judges  dissenting.  To  the 
contention  raised  by  counsel  for  the  bill-board 
company  that  the  statute  discriminates,  the  court 
replied  that  there  can  be  no  discrimination,  since 
bill-boards  are  of  necessity  in  a  class  by  them- 
selves because  of  their  temporary  character  and 
consequent  cheap  and  insecure  structure.  In 
distinguishing  them  from  other  structures  on 
the  top  of  buildings,  like  tanks,  chimneys,  towers, 
poles,  and  so  forth,  the  court  says:  "Should  they 
(bill-boards)  be  required  to  be  constructed  with 
the  same  permanency  (as  tanks,  towers,  and  so 
forth),  that  fact  alone  would  destroy  their  com- 
mercial value  and  put  them  out  of  business,  for 
the  cost  of  construction  would  greatly  exceed  the 

163 


CARRYING   OUT   THE    CITY    PLAN 

amount  of  income  that  would  be  derived  there- 
from/' It  is  the  finding  that  bill-boards  are 
'* nuisances  in  character"  distinguished  from  all 
other  apparently  similar  structures  by  their 
cheapness  and  insecurity  that  distinguishes  the 
Missouri  decision  from  those  which  have  held 
similar  ordinances  invalid  as  an  unwarranted  ex- 
ercise of  the  police  power. 

The  Missouri  case  finds  something  more  danger- 
ous in  bill-boards  than  the  paper  on  them  con- 
taining the  advertisement.  The  decision  amounts 
to  this:  All  bill-boards  are  likely  to  fall;  to  con- 
struct them  safely  would  involve  a  cost  which 
would  prohibit  their  erection;  all  bill-boards  are 
likely  to  harbor  nuisances;  all  bill-boards  increase 
the  fire  hazard.  One  form  of  regulation  would 
be  to  require  construction  specifications,  but  it  is 
just  as  reasonable  to  move  them  back  from  the 
lot  line  and  so  limit  their  height  that  the  danger 
from  them  is  removed.  It  is  also  reasonable  to 
require  an  open  space  at  the  bottom  and  at  the 
sides  of  the  lot  so  as  to  check  nuisances  that  tend 
to  grow  up  behind  the  barrier  and  to  decrease  the 
risk  of  fire. 

This  St.  Louis  case  has  been  taken  to  the  supreme 
court  of  the  United  States  on  a  writ  of  error,  but 
it  goes  up  with  the  advantage  to  the  city  that  the 
highest  state  court  has  found  it  a  valid  exercise 
of  the  police  power.  The  supreme  court  is  slow  to 
overthrow  such  a  finding  and  the  chance  is  good 
for  establishing  a  precedent  irrespective  of  the 

164 


USE    OF   THE    POLICE    POWER 

reasoning  of  the  court.  The  decision  can  not  be 
cited  as  sustaining  the  exercise  of  the  police  power 
for  esthetic  purposes,  but  the  charge  is  well 
founded  that  esthetic  considerations  are  poorly 
concealed  behind  the  pretext  of  guarding  the 
safety,  morals,  and  health  of  the  people. 

As  a  method  of  largely  suppressing  the  bill- 
board evil  it  is  believed  that  the  drastic  St.  Louis 
ordinance  will  be  effective,  since  the  burden  put 
upon  the  maintenance  of  such  structures  will  be 
likely  to  take  away  much  of  the  profit  that  they 
bring.  But  it  is  very  doubtful  whether  the  St. 
Louis  method  will  be  generally  followed  as  a 
method  of  suppressing  the  evil.  Certainly  in 
those  jurisdictions  where  a  careful  consideration 
has  been  given  to  ordinances  of  like  character,  it 
is  not  to  be  expected  that  there  will  be  different 
findings  than  heretofore.  In  cities  where  the 
question  is  new,  it  is  not  likely  that  the  courts 
will  follow  the  Missouri  court  in  saying  that  bill- 
boards can  not  be  safely  erected  because  of  their 
temporary  character.  Until  the  public's  good 
taste,  its  sense  of  orderliness,  harmony,  and 
beauty,  are  ranked  more  nearly  on  the  same  plane 
as  its  health,  safety,  and  morals,  or  until  the 
doctors  have  established  a  positive  injury  to 
health  through  the  sense  of  vision,  we  may  expect 
no  protection  against  unsightly  structures  through 
the  exercise  of  the  police  power. 


165 


CARRYING   OUT   THE    CITY    PLAN 

OTHER  METHODS  OF  CONTROL 
Although  the  degree  of  control  over  intensive 
and  offensive  uses  of  land  which  is  desirable  in  the 
development  of  a  city  plan  can  not  be  attained 
under  the  exercise  of  the  police  power,  the  mu- 
nicipality may  accomplish  some  of  the  same  pur- 
poses by  purchasing  or  taking  under  eminent 
domain  an  easement  in  the  land  which  it  is  desired 
to  control.  If  the  decision  in  the  Copley  Square 
case,  as  usually  interpreted,  discussed  in  Chapter  I, 
is  good  law  and  is  generally  followed,  it  would  sup- 
port the  recent  legislation  in  Missouri,  in  Indiana 
and  Colorado,  which  excludes  objectionable  occu- 
pations from  land  fronting  on  parks  and  boule- 
vards by  purchasing  or  condemning  the  right  of 
the  owners  to  use  their  land  for  such  purposes.* 
The  constitutionality  of  the  acts  of  Massachusetts 
authorizing  the  establishment  of  building  lines  be- 
yond which  no  building  can  be  constructed  has 
never  been  questioned;  but  in  all  such  legislation 
provision  is  made  for  compensating  land  owners 
for  damages.  An  ordinance  has  been  introduced 
in  Denver  to  provide  for  taking  such  easements  in 
land  adjacent  to  parks  and  parkways  by  condem- 
nation and  for  assessing  the  cost  of  the  taking 
upon  the  district  benefited.  This  idea  is  sug- 
gestive of  large  possibilities  but  has  not  as  yet 
been  tested. 

*  For  text  see  Appendix,  p.  219. 


166 


USE    OF   THE    POLICE    POWER 
CONCLUSION 

In  conclusion,  the  police  power  is  constantly 
being  held  to  justify  interference  with  the  use  of 
private  property.  The  only  limit  to  such  inter- 
ference is  a  judicial  determination  that  a  specific 
ordinance  is  not  a  reasonable  means  of  protecting 
the  safety,  health,  and  morals  of  the  community. 
It  is  for  the  legislative  body  to  determine  in  the 
first  instance  the  reasonableness  of  the  means. 
It  is  a  sound  judicial  principle,  carried  exception- 
ally far  in  the  Missouri  case  cited  on  page  162,  that 
courts  will  be  slow  to  overthrow  the  determination 
of  the  legislature. 


167 


CHAPTER  VI 

THE  WORK  OF  ADMINISTRATIVE  AGEN- 
CIES IN  THE  EXECUTION  OF  A  CITY 
PLAN 

WE  have  thus  far  considered  how  the  mu- 
nicipal authorities  may  execute  a  plan 
by  enforcing  those  rights  which  the  leg- 
islature has  delegated  to  them  as  the  representa- 
tives of  the  people.  Through  the  ownership  of 
land  and  by  the  exercise  of  the  police  power 
the  city  may  absolutely  control  the  working  out 
of  many  details  of  a  plan.  But  a  city  is  seri- 
ously handicapped  in  the  use  of  both  of  these 
methods  of  control.  The  acquisition  of  land  by 
any  method  is  expensive,  and  by  the  condemna- 
tion method  is  both  expensive  and  slow.  To 
enforce  a  police  ordinance  requires  an  injunc- 
tion after  a  court  hearing,  and  the  usual  adminis- 
trative agency  is  slow  to  ask  for  an  injunction  and 
the  usual  court  is  slow  to  grant  it.  Some  details, 
at  least,  of  a  city  plan  will  be  executed,  in  the 
future  as  in  the  past,  by  the  mere  guidance  of 
developments  undertaken  on  private  initiative 
without  resort  to  legal  compulsion. 

A  plan  for  a  city's  growth  generally  approved 
by  the  business  interests,  by  public  service  cor- 

i68 


WORK   OF   ADMINISTRATIVE    AGENCIES 

porations,  and  by  the  public,  and  administered  by 
a  tactful  agency  which  advocates  the  execution  of 
the  proper  features  of  the  plan  at  the  right  time 
carries  with  it  the  persuasion  of  good  business 
policy.  It  becomes  the  thing  to  do  to  fall  in  line 
with  such  a  plan. 

THE  CONTROL  OF  STREET  LAY-OUT  BY  ADMINIS- 
TRATIVE PRESSURE 

In  a  growing  community,  even  if  the  public 
authorities  are  utterly  supine  in  the  matter, 
private  initiative  will  constantly  increase  the  num- 
ber of  house  lots  and  bring  about  the  creation 
of  streets  necessary  to  give  access  to  them.  These 
streets  may  promptly  become  public  ways  or 
they  may  remain  private  ways  for  a  long  time; 
but  in  the  aggregate  they  form  the  most  important 
single  element  in  the  city  plan,  largely  controlling 
every  other  feature.  The  most  obvious  and 
perhaps  the  most  important  step  in  the  wise 
guidance  of  a  city's  growth  is  the  endeavor  to 
make  the  streets  thus  brought  into  existence 
through  private  initiative  serve  not  merely  the 
immediate  selfish  purpose  of  the  dealer  in  real 
estate  but  the  permanent  interests  of  the  whole 
community.  The  attempt  to  control  private  de- 
velopment is  made  through  the  supervision  of  all 
plans  offered  for  record,  supplemented  in  a  few 
cities  by  the  establishment  of  an  official  street 
plan  to  which  all  private  plattings  are  expected 
to  conform. 

169 


CARRYING   OUT  THE   CITY    PLAN 

The  right  in  a  municipality  to  supervise  all 
plans  of  subdivisions  is  well  recognized  in  the 
United  States,  but  the  exercise  of  the  right  is  by 
no  means  general.  It  varies  from  a  purely  formal 
supervision,  to  a  real  attempt  to  control  private 
development.  A  street  which  is  to  be  a  public 
highway  is  frequently  required  to  conform  to 
standard  specifications  as  to  width,  sidewalk  space, 
surfacing,  and  so  forth.  In  some  cities  a  consider- 
able measure  of  co-operation  is  secured  and  owners 
of  property  are  induced  to  change  even  the  number 
and  direction  of  proposed  streets  at  the  suggestion 
of  the  municipal  authorities. 

The  method  of  enforcing  the  right  of  supervision 
in  most  general  use  is  to  refuse  for  record  any 
plan  of  proposed  streets  and  lots  which  has  not 
been  approved  by  the  proper  municipal  authori- 
ties. Owners  who  persist  in  their  plan  are  pre- 
vented from  describing  lots  by  a  short  reference 
to  a  recorded  plan  and  must  in  each  transfer  de- 
scribe by  metes  and  bounds.  The  inconvenience 
is  considerable,  although  the  burden  of  this  falls 
rather  on  the  title  examiner  who  is  paid  for  his 
labor  and  on  the  purchaser  than  on  the  vendor. 
In  cities  where  the  custom  of  dealing  in  lots  by 
reference  to  a  recorded  plat  instead  of  by  metes 
and  bounds  is  nearly  universal,  a  prospective 
purchaser  may  balk  at  buying  a  lot  that  fails  to 
conform  to  the  customary  standard  in  this  re- 
spect. 


170 


WORK   OF   ADMINISTRATIVE    AGENCIES 

Another  method  of  control,  also  in  pretty  general 
use,  is  the  refusal  to  accept  a  non-conforming  street 
as  a  public  highway.  Instead  of  having  the  benefit 
of  the  co-operation  of  the  municipality  in  the  con- 
struction of  water  mains,  sewer  pipes,  and  other 
municipal  services,  and  instead  of  being  entirely 
relieved  of  their  upkeep,  the  cost  of  both  con- 
struction and  maintenance  of  the  highway  and  of 
the  various  conduits  for  public  service  falls  on 
the  owners  of  lots  abutting  on  the  private  street. 
Unfortunately,  these  owners  are  rarely  the  offend- 
ing developers  of  the  property;  they  usually  are 
innocent  purchasers  who  have  bought  lots,  re- 
lying on  the  supposition  that  they  were  on  an 
accepted  or  acceptable  street.  Rather  than  pur- 
sue their  rights  against  the  land  company  which 
made  the  sale,  they  are  more  likely  to  prevail  on 
the  municipal  authorities  to  waive  the  require- 
ments and  accept  the  street  as  a  public  highway. 

The  experience  of  at  least  one  town  has  worked 
out  a  variation  of  these  methods  of  pressure. 
Massachusetts  towns,  by  the  acceptance  of 
Chapter  191  of  the  acts  of  1907,  may  authorize  the 
board  of  selectmen  to  act  as  a  board  of  survey  with 
power  to  compel  the  submission  of  all  plans  for 
the  location  of  streets  or  highways  for  their  ap- 
proval.* It  was  found  that  while  development 
companies  were  usually  quite  willing  to  submit 
plans  and  accept  suggestions,  when  the  land  was 
cut  up  into  streets  and  lots  the  plans  which  had 

*  For  text  of  act  see  Appendix,  p.  280. 
171 


CARRYING   OUT  THE   CITY    PLAN 

been  accepted  by  the  board  of  survey  frequently 
had  not  been  followed.  Consequently  the  town 
adopted  the  following  regulation: 

Whenever  application  is  made  to  the  selectmen  act- 
ing as  the  board  of  survey,  by  the  owner  or  owners 
of  a  parcel  of  land  for  the  approval  of  a  plan  showing  the 
layout  of  streets  in  said  land,  such  owner  or  owners 
shall  furnish  a  bond  conditioned  for  the  prompt  con- 
struction of  said  street  or  streets  in  accordance  with 
the  grades  and  layout  approved  by  the  board  of  sur- 
vey.    .     .     . 

This  practice  seems  effective  at  least  in  cases 
where  the  developer  desires  the  approval  of  the 
board  of  survey,  but  the  situation  is  still  left  with- 
out remedy  where  the  developer  is  willing  to  sub- 
divide his  land  without  submitting  his  plans  to 
the  municipal  authorities  and  to  construct  and 
maintain  streets  at  his  own  expense. 

The  possibilities  of  official  supervision  have  not 
been  fully  realized,  partly  because  of  the  too  fre- 
quent use  of  political  influence  and  partly  because 
of  an  adherence  to  old  methods,  and  of  an  utter 
lack  of  scientific  handling  of  the  problem  and 
the  absence  of  a  well  considered  city  plan.  The 
property  owner  often  objects  with  justice  to  the 
arbitrary  specifications  required  both  for  the 
width  of  a  street  and  the  allotments  of  space  for 
sidewalk  and  parking  strips.  Even  in  cities 
where  most  has  been  accomplished  in  the  planning 
of  a  street  system  there  has  not  been  a  sufficient 
regard  for  the  difference  in  the  use  of  streets  as 

172 


WORK   OF   ADMINISTRATIVE   AGENCIES 

affecting  their  width  and  cross  section.  Many 
cities  require  all  streets  to  have  a  certain  minimum 
width,  either  40,  50,  or  60  feet  between  property 
lines,  whereas  in  some  cases  a  width  less  than  this 
standard  minimum  would  be  much  more  suitable. 
Often  a  street  is  made  70  feet  wide  because  it  is 
the  extension  of  a  street  70  feet  wide,  although  this 
width  both  for  the  old  street  and  the  new  may  be 
too  great  or  too  little.  Sidewalks  in  many  cities 
are  given  a  fixed  width  in  proportion  to  the  width 
of  the  entire  street,  although  that  width  may  be 
excessive  or  inadequate  for  sidewalk  purposes  in 
special  cases. 

But  at  best,  supervision  by  these  means  will 
fail  of  great  effectiveness  because  too  much  de- 
pends on  persuasion  and  there  is  too  little  oppor- 
tunity for  legal  pressure.  The  property  owner 
can  block  the  best  laid  plans  of  the  municipality. 
To  obtain  positive  control  of  property  develop- 
ment land  or  rights  in  land  must  be  taken,  and  for 
this  the  city  must  pay. 

With  the  purpose  of  forestalling  private  de- 
velopment several  cities  have  established  bureaus 
to  prepare  an  official  plan  of  streets  to  which 
private  platting  is  expected  to  conform.  A  device 
included  in  the  legislation  creating  some  of  these 
street  planning  bureaus,  which  aims  to  place  the 
location  and  design  of  streets  absolutely  in  the 
control  of  the  municipality,  is  contained  in  the 
provision  that  owners  who  erect  buildings  within 
the  limits  of  a  proposed  street  as  laid  down  on  the 

173 


CARRYING   OUT   THE    CITY    PLAN 

official  plan  will  receive  no  compensation  for  damage 
to  their  buildings  when  the  street  is  constructed.* 
But  in  every  state  which  has  enacted  this 
provision  except  Pennsylvania  this  interference 
with  private  property  is  regarded  as  a  taking 
of  property  without  compensation,  therefore  un- 
constitutional, or  has  been  expressly  so  held  by 
the  supreme  court. f  From  early  times  Pennsyl- 
vania statutes  have  given  the  properly  constituted 
municipal  authorities  power  to  determine  in  ad- 
vance the  location  of  all  streets  without  compen- 
sation for  the  interference  with  the  rights  of  prop- 
erty owners.  By  act  of  June,  1836,  commissioners 
were  authorized  to  set  off  a  certain  tract  of  land 
and  plot  it  with  streets  and  squares.  Notice  was 
then  given  to  property  owners  concerned,  and 
after  a  hearing  of  objections  the  plan  with  or 
without  amendments  was  recorded  and  became 
official  "and  the  streets,  lanes,  and  alleys  so  ap- 
proved shall  forever  after  be  deemed,  adjudged 
and  taken  to  be  public  highways."  In  1841  the 
court  of  general  sessions  refused  to  grant  a  petition 
establishing  this  plan  on  the  ground  of  the  uncon- 
stitutionality of  the  statute.  The  case  on  a  writ  of 
certiorari  went  to  the  supreme  court  which  reversed 
the  decision  of  the  lower  court  and  found  that 

The  mere  laying  out  of  the  streets  can  not  be  said  of 
itself  to  be  the  taking  of  the  property  of  individuals 

*  See  Appendix  for  text  of  legislation,  pp.  243  flF.,  282. 
t  Forster  vs.  Scott,  136  N.  Y.  App.  577.     See  Appendix,  p.  244. 
Edwards  vs.  Bruorton,  184  Mass.  529.     See  Appendix,  p.  245. 

174 


WORK   OF   ADMINISTRATIVE    AGENCIES 

upon  which  they  are  laid  out  for  public  use  at  some 
future  day,  but  rather  a  designation  of  what  may  be 
required  for  that  purpose  thereafter,  so  that  the  owners 
of  the  property  may  in  due  time  be  fully  apprised  of 
what  is  anticipated  and  regulate  the  subsequent  im- 
provements which  they  shall  make  thereon  accordingly. 
.  .  .  Until  the  actual  opening  the  owners  thereof 
continue  not  only  to  hold  the  same  interest  in  them  but 
likewise  to  have  the  right  to  enjoy  them  and  in  the 
same  manner  as  they  did  previously.* 

Thirty  years  later,  in  1871,  the  supreme  court 
further  extended  the  principle  by  holding  that  if 
buildings  were  erected  within  the  line  of  the  street 
after  notice  of  the  plan  was  given  to  the  owners, 
the  damage  to  such  building  on  the  opening  of 
such  street  could  not  be  paid  for,  "otherwise  the 
map  or  plan  would  be  entirely  nugatory. t  The 
same  question  was  considered  in  1893  and  the 
principle  was  held  well  established. J  Curiously 
enough,  the  first  Pennsylvania  case  was  decided 
on  the  reasoning  in  a  New  York  case  decided  in 
1836,  Furman  St.,  17  Wend.  649,§  but  this  New 
York  decision  was  reversed  in  1892  by  the  case  of 
Forster  vs.  Scott,  136  N.  Y.  App.  577,!!  the  court 
holding  that 

Whenever  a  law  deprives  the  owner  of  the  benefit, 
use  and  free  enjoyment  of  his  property  or  imposes 
restraint  upon  such  use  or  enjoyment  that  materially 

*  In  re  District  of  Pittsburgh,  2  W.  and  S.  320. 

t  Forbes  St.,  70  Pa.  125. 

X  Bush  vs.  McKeesport,  166  Pa.  57.     See  Appendix,  p.  244. 

§  See  Appendix,  p.  243.  |1  See  Appendix,  p.  244. 

175 


CARRYING   OUT   THE    CITY    PLAN 

affects  its  value  without  legal  process  or  compensation, 
it  deprives  him  of  the  property  within  the  meaning  of 
the  constitution. 

This  power  of  determining  the  lines  of  a  street 
without  immediate  construction  of  the  street 
has  allowed  a  widening  of  some  of  Philadelphia's 
narrow  business  streets  in  a  way  impossible  in  a 
city  of  any  other  state.  In  1870  it  was  deter- 
mined to  increase  the  width  of  Chestnut  Street 
from  40  to  50  feet  by  an  addition  of  five  feet  on 
either  side.  Land  abutting  on  this  street  has 
great  value  and  was  occupied  by  costly  buildings, 
and  if  condemnation  proceedings  had  been  in- 
stituted for  acquiring  the  additional  10  feet  the 
expense  of  the  improvement  would  have  been 
perhaps  prohibitive.  But  the  act  of  1870  pro- 
vided that  compensation  should  not  be  paid  till 
a  building  was  reconstructed  and  set  back  to  the 
new  building  line,  and  thus  the  expense  for  getting 
a  50-foot  street  was  distributed  over  many  years 
and  nothing  was  paid  for  buildings.  The  same 
process  has  been  adopted  for  at  least  two  other 
downtown  streets  of  Philadelphia,  but  this  power 
has  not  been  employed  to  increase  the  width  of 
streets  in  built-up  areas  in  any  other  city  of  Penn- 
sylvania. 

PLATTING   BOARDS    IN    VARIOUS    CITIES 

Philadelphia.  Official  planning  in  Philadel- 
phia is  done  by  the  bureau  of  surveys.  The  board 
is  composed  of  fourteen  district  surveyors  pre- 

176 


WORK   OF   ADMINISTRATIVE    AGENCIES 

sided  over  by  the  chief  engineer  and  surveyor  of 
the  city.  Each  district  surveyor  has  charge  of  a 
particular  section  of  the  city,  with  a  corps  of  en- 
gineers and  assistants  under  his  immediate  direc- 
tion. He  is  the  only  person  having  the  authority 
to  make  an  official  survey  of  public  or  private 
property  in  his  district.  All  fees  for  work  done 
for  private  parties  are  paid  into  the  city  treasury 
by  the  individual  for  whom  the  work  is  done. 
Such  a  system  gives  each  district  surveyor  a 
practical  knowledge  of  the  land  and  of  the  land 
owners,  and  the  confidence  which  is  had  in  the 
district  surveyor  has  done  more  to  prevent  viola- 
tions of  the  street  plan  than  the  penalties  contained 
in  the  legislation.  The  city  has  a  plan  of  streets 
ready  for  each  district  before  the  land  owners  are 
ready  to  subdivide  their  land.  When  any  one  or 
more  of  the  land  owners  begin  to  consider  platting 
their  land  the  district  surveyor  must  be  consulted, 
and  the  city  is  in  a  strategic  position  to  carry 
through  its  own  officially  adopted  plan. 

Boston.  The  board  of  survey  in  Boston  was 
created  in  1891*  with  power  to  make  plans  of  such 
territory  "as  the  board  may  deem  advisable, 
showing  thereon  the  location  of  such  streets  or 
ways,  whether  already  laid  out  or  not  as  the  board 
shall  be  of  opinion  that  the  present  or  future  in- 
terests of  the  public  require  or  will  require."  For 
five  years  the  activity  of  the  board  resulted  in 

*  The  act  does  not  differ  in  principle  from  that  creating  a  Town 
Board  of  Survey.     See  Appendix,  p.  280. 

13  177 


CARRYING   OUT   THE    CITY    PLAN 

planning  6,000  acres  of  comparatively  unoccupied 
territory.  The  board  of  survey  was  succeeded  and 
its  duties  were  taken  over  by  the  long  established 
and  conservative  board  of  street  commissioners 
in  1896.  Since  this  time  there  has  been  much  less 
activity,  if  the  amount  of  territory  covered  by  a 
street  plan  is  an  accurate  measure.  The  fifteen 
years  of  the  work  of  the  street  commission  resulted 
in  the  platting  of  about  the  same  amount  of  terri- 
tory as  was  covered  by  the  board  of  survey  in  five 
years.  The  difference  may  be  due  to  a  lack  of 
sufficient  appropriation.  The  act  of  1891  carried 
with  it  a  special  appropriation  for  the  work  of 
platting  new  streets,  and  the  city  council  during 
the  life  of  the  board  of  survey  was  very  liberal  with 
appropriations  for  this  purpose.  During  the  subse- 
quent history  of  the  street  commissioners  the  only 
amount  available  for  purposes  of  platting  was  what 
could  be  spared  out  of  the  total  appropriation  for 
street  work.  It  is  also  a  fair  conclusion  that  there 
was  less  enthusiasm  for  platting  under  the  board 
of  street  commissioners  than  under  the  board  of 
survey,  which  was  created  for  that  specific  purpose. 
A  provision  in  the  board  of  survey  act,  like 
those  in  the  Pennsylvania  acts,  withholds  compen- 
sation to  property  owners  who  erect  structures  in 
the  streets  proposed  for  newareas,  but  the  supreme 
court  held  that  this  no-damage  provision  was  an 
interference  with  the  use  of  property  and  that 
since  no  compensation  was  given  the  owner  it 
was  an  unconstitutional  interference.*    Although 

*  Edwards  vs.  Bruorton,  184  Mass.  529.     See  Appendix,  p.  245. 

178 


WORK   OF    ADMINISTRATIVE   AGENCIES 

this  opinion  was  not  necessary  for  a  decision  of  the 
case  there  is  little  question  that  the  dictum  would 
be  followed  in  Massachusetts,  and  in  accordance 
with  this  dictum  the  street  commissioners  have 
been  advised  by  the  city  of  Boston  law  department 
that  building  lines  can  not  been  forced  without 
payment  of  compensation. 

It  is  conjectural  just  how  much  this  decision 
has  weakened  the  effectiveness  of  the  board  of 
survey  acts  as  instruments  for  building  up  an  ade- 
quate street  system,  since  no  record  is  kept  of  the 
violation  of  the  lines  which  the  board  of  survey 
has  laid  down.  The  official  plan  has  standing 
among  respectable  property  owners  who  recognize 
a  real  economy  in  a  planned  street  system.  Con- 
servative banks  in  Boston  refuse  to  loan  on  prop- 
erty subject  to  a  board  of  survey  line  unless  the 
building  plans  show  the  observance  of  these  lines. 
Careful  conveyancers  in  examining  a  Boston  title 
inquire  whether  there  is  a  board  of  survey  line 
on  the  property.  The  practice  in  Boston  is  to 
issue  from  the  city  hall  a  certificate  showing  all 
municipal  claims  against  any  given  parcel  of  prop- 
erty, and  the  existence  of  a  board  of  survey  line 
is  noted  on  this  certificate.  Pressure  can  still  be 
brought  to  bear  on  non-conforming  owners  by 
refusal  on  the  part  of  the  city  to  co-operate  with 
them  in  the  construction  and  maintenance  of  the 
water,  sewer,  and  lighting  systems.  It  is  the  gen- 
eral impression  among  those  who  are  most  closely 
acquainted  with  the  work  of  the  laying-out  of  the 

179 


CARRYING   OUT   THE    CITY    PLAN 

Streets  that  violations  of  the  street  lines  are  of 
infrequent  occurrence. 

Under  Chapter  191  of  the  acts  of  1907,  Massa- 
chusetts towns  may  authorize  their  selectmen  to 
act  as  a  board  of  survey  with  the  same  power  to 
lay  out  official  streets  as  the  Boston  street  com- 
missioners. Several  towns  of  the  state  have  ac- 
cepted the  act  and  in  a  very  few  cases  survey  lines 
have  been  imposed  on  particular  streets,  but  there 
has  been  no  general  extension  of  the  street  plan 
into  unoccupied  areas. 

New  York.  New  York  had  a  topographical 
bureau  for  four  years,  dating  from  the  first  Greater 
New  York  charter,  January  i,  1898,  but  during 
these  formative  years  there  was  little  or  no  prog- 
ress with  official  plans.  On  January  i,  1902,  the 
amended  charter  placed  the  topographical  work 
in  each  of  the  five  boroughs  under  the  control  of 
the  borough  president,  and  since  then  five  separate 
bureaus  have  had  charge  of  the  completion  of  the 
map  of  the  city  and  the  drainage  plan.  The  dis- 
advantage of  separate  planning  bureaus,  particu- 
larly where  the  territory  of  two  boroughs  is 
contiguous,  is  obvious.  There  is,  however,  one 
opportunity  for  securing  co-ordination  in  street 
planning.  All  plans  must  be  submitted  by  the 
presidents  of  the  boroughs  to  the  board  of  estimate 
and  apportionment,  and  they  do  not  become  official 
without  the  approval  of  that  board.  In  Manhat- 
tan and  Brooklyn  the  plans  submitted  consist 
almost  entirely  in  changes  in  the  official  map  which 

180 


WORK   OF   ADMINISTRATIVE   AGENCIES 

is  practically  complete  for  both  boroughs.  The 
following  table  shows  the  work  of  the  topographi- 
cal bureaus  in  the  other  boroughs  since  1902: 


TABLE    7.-PROGRESS    MADE    IN   MAPPING    THE    BOR- 
OUGHS OF  THE    BRONX,  QUEENS,  AND   RICHMOND, 
NEW  YORK  CITY,   TO  JANUARY   1,    1913* 


BOROUGH 

The 
Bronx 

Queens 

Rich- 
mond 

Total  area  in  acres         .... 

26,523 

75.  HI 

36,600 

Acres  approved  for  mapping  prior  to 
Jan.  I,  1902 

Tentative 

Final       

14.430 

5,402 

"60 

Total 

14.430 

5,402 

60 

Between  Jan.  i,  1902,  and  Jan.  i,  1912 

Tentative^ 

Final       

956 
10,004 

3,416 
14,476 

7.940 
964 

Total 

10,960 

17.892 

8.904 

During  19 12 

Tentative 

Final 

234 

12,984 
3,070 

2,540 

Total 

234 

16,054 

2,540 

Total  area  in  acres  mapped  to  Jan.  i, 

'913        .     ^ 

Tentative^ 

Final 

956 
24,668 

16,168 
22,948 

10,480 
1,024 

Total 

25,624 

39.116 

11,504 

Per  cent  of  borough   area  in  acres 
mapped  to  Jan.  i,  1913 

Tentative^ 

Final 

3.6 
93.0 

30.6 

28.6 
2.8 

Total 

96.6 

52.1 

31.4 

a  Report  of  Chief  Engineer,  Board  of  Estimate  and  Apportion- 
ment, 19 1 2,  page  66. 

*>  Excludes  areas  for  which  final  maps  have  been  adopted. 
181 


CARRYING   OUT   THE    CITY    PLAN 

Baltimore.  The  Baltimore  topographical  sur- 
vey commission  was  created  by  ordinance  in  1893 
for  the  purpose  of  making  a  complete  survey 
of  the  city,  including  about  seventeen  square 
miles  of  undeveloped  territory,  rural  in  character, 
which  had  become  a  part  of  the  city  in  1888. 
With  the  completion  of  the  survey  an  official 
plan  was  adopted  for  the  annexed  territory  in  1893 
by  the  mayor  and  city  council,  and  subsequently 
by  act  of  the  general  assembly  of  Maryland,  Balti- 
more was  prohibited  from  accepting  a  deed  of 
dedication  or  the  opening  in  any  manner  of  a 
street  which  did  not  conform  to  the  general  plan 
or  the  plan  duly  amended.  Amendments  of  the 
official  plan  must  be  approved  by  the  topographi- 
cal survey  commission  and  adopted  by  the  city 
council  before  they  can  be  incorporated. 

In  spite  of  the  legislation  in  Maryland  which 
seems  to  put  the  control  of  city  planning  in  the 
hands  of  the  city,  and  in  spite  of  the  activity 
of  topographical  bureaus  of  New  York  City,  the 
limitations  on  municipal  control  of  street  planning 
in  both  Baltimore  and  New  York  are  the  same  as 
in  Boston.  Official  streets  in  both  cities  have 
been  blocked  by  the  owners  of  the  land  or  specu- 
lative builders,  and  cases  of  successive  house 
planting  in  New  York  City  are  notorious.  And 
yet,  the  advantages  of  official  street  plans  are 
considered  to  offset  these  limitations  and  street 
planning  bureaus  have  passed  the  experimental 
stage. 

182 


/. 


WORK   OF   ADMINISTRATIVE   AGENCIES 

Their  success  furnishes  a  precedent  for  many 
cities  in  the  United  States  which  still  exercise  little 
or  no  control  over  a  phase  of  planning  where  the 
interest  of  the  private  owner  is  so  often  opposed 
to  the  public  good.  The  possibilities  of  adminis- 
trative pressure  in  the  solution  of  other  city  plan- 
ning problems  now  determined  on  the  initiative 
of  private  or  corporate  interests  suggest  them- 
selves. The  development  of  the  water  front,  the 
location  of  railroad  terminals,  the  transit  problem, 
have  all  been  distinctly  recognized  as  requiring 
the  permanent  attention  of  a  special  planning 
board  representing  the  public  interest.  But  in 
those  fields  where  the  public  interest  is  apt  to  con- 
flict with  the  advantage  of  private  or  corporate 
owners,  the  value  of  expert  suggestion  and  study 
can  never  be  as  fully  realized  as  where  the  execu- 
tion of  a  plan  is  entirely  in  the  control  of  the 
municipality.    ^ 

PLANNING    OF    PUBLIC    WORK    OTHER    THAN 
STREETS 

In  the  location  and  design  of  public  parks  and 
in  the  location  and  design  of  public  buildings,  in- 
cluding bridges,  the  administrative  agency  of  the 
municipality  or  other  governmental  unit  has  a 
free  hand.  The  establishment  and  development 
of  a  system  of  parks  and  parkways  are  now  en- 
trusted very  generally  to  an  administrative  board 
which  employs  expert  advice  and  considers  the 
park  problems  of  the  entire  city  as  a  unit.     The 

183 


CARRYING   OUT   THE   CITY    PLAN 

location  and  design  of  public  structures  are,  how- 
ever, in  most  cases  left  to  the  judgment  of  the 
several  departments  which  will  use  or  maintain 
them;  but  occasionally  the  function  of  a  muni- 
cipal art  commission  is  enlarged  sor-that  its  ap- 
proval is  necessary  to  the  selection  of  the  site  and 
design  for  public  structures  as  well  as  for  the 
location  and  design  of  '*  works  of  art." 

In  New  York  City  the  art  commission  must 
approve  the  location  and  design  of  all  structures 
for  which  the  contract  price  exceeds  $250,000; 
but  in  the  case  of  other  public  structures  the 
approval  of  the  commission  need  not  be  required 
if  the  mayor  or  the  board  of  aldermen  request  the 
commission  not  to  act.* 

The  Philadelphia  art  jury  created  in  19 12  was 
given  this  additional  power  by  the  legislature  of 
1913. 

No  construction  or  erection  in  a  city  of  the  first 
class  of  any  building,  bridge  or  its  approaches,  arch, 
gate,  fence,  or  other  structure  or  fixture  which  is  to  be 
paid  for  wholly  or  in  part  by  appropriation  from  the 
city  treasury  or  other  public  funds,  or  for  which  the 
city  or  any  other  public  authority  is  to  furnish  a  site, 
shall  be  begun  until  the  approval  of  the  jury  shall 
have  been  given  to  the  design  and  proposed  location 
thereof.  The  approval  of  the  jury  shall  also  be  re- 
quired in  respect  to  all  structures  or  fixtures  belonging 
to  any  person  or  corporation  which  shall  be  erected 
upon  or  extend  over  any  highway,  stream,  lake,  square, 

*  Charter  of  New  York  City  as  amended  by  Chapter  675  of  the 
laws  of  1907,  Section  637. 

184 


WORK   OF   ADMINISTRATIVE    AGENCIES 

park  or  public  place  within  the  city.  ...  In 
deeds  for  land  made  by  any  city  of  the  first  class  re- 
strictions may  be  imposed  requiring  that  the  design 
and  location  of  structures  to  be  altered  or  erected 
thereon  shall  be  first  approved  by  the  art  jury  of  each 
city.  Nothing  requiring  the  approval  of  the  jury  shall 
be  erected  or  changed  in  design  or  location  without  its 
approval.  If  the  jury  fails  to  act  upon  any  matter 
submitted  to  it  within  60  days  after  such  submission, 
its  approval  of  the  matter  submitted  shall  be  presumed.* 

In  spite  of  the  complete  control  which  a  munici- 
pality has  over  the  location  and  design  of  public 
structures  and  the  creation  and  extension  of  its 
park  system,  the  obstacles  to  the  formulation  of 
and  adherence  to  a  consistent  plan  are  as  persis- 
tent and  often  as  effective  as  those  which  prevent 
the  control  of  street  development. 

Expert  suggestions  have  too  frequently  been 
disregarded  by  a  purely  political  city  council 
whose  power  of  appropriation  is  a  most  effective 
check  on  the  execution  of  city  plans.  One  of  the 
chief  objections  to  the  usual  form  of  city  govern- 
ment with  a  mayor  and  a  large  elected  council  of 
one  or  two  chambers,  aside  from  incompetence  and 
wastefulness  and,  at  the  worst,  dishonesty,  arises 
from  this  power  of  obstruction.  Neither  the 
people's  representatives  in  council  nor  the  en- 
gineers and  architects  in  the  employ  of  the  city 
departments  have  been  educated  to  the  idea  of  a 
unified  city.  The  department  system  emphasizes  a 

*  Pa.  Acts,  19 13,  No.  456, 

185 


CARRYING   OUT  THE    CITY    PLAN 

city's  subdivisions;  the  political  system  empha- 
sizes still  different  subdivisions ;  and  neither  group 
of  subdivisions  logically  fits  into  a  city  plan. 
There  may  be  interesting  historical  reasons  for 
the  combination  of  certain  areas  into  this  or  that 
group;  politicians  may  have  had  shrewd  reasons 
for  establishing  certain  political  boundaries;  but 
the  topographical  conditions  of  the  site  often  prove 
the  strangeness  of  the  compound.  Several  sec- 
tions contained  in  a  political  subdivision  may  be 
separated  by  considerable  water-ways  or  difficult 
grades  so  that  transit  between  parts  of  the  same 
political  district  is  almost  prohibitively  expensive; 
and  yet  that  district  must  be  treated  as  a  unit 
when  appropriations  for  public  improvements 
are  considered.  The  ward  or  district  method  of 
electing  city  councilmen  does  not  produce  a  body 
interested  in  the  best  development  of  the  city  as  a 
unit,  the  best  transit  system  for  the  whole  city, 
the  best  park  system  for  the  whole  people,  the 
most  complete  playground  system  for  all  the 
children.  Instead,  forty  units,  more  or  less,  with 
selfish  ideas  fostered  by  local  business  men  and 
property  owners,  are  represented  each  by  a  coun- 
cilman whose  best  equipment  is  his  ability  to  get 
things  for  his  own  ward,  and  the  city  plan  develops 
like  a  crazy  quilt. 

The  last  few  years  have  seen  considerable  de- 
velopment of  the  unit  idea.  One  interesting  step 
is  the  correlation  of  all  the  departments  of  a  city 
administration.    This  is  done,  first,  by  the  crea- 

i86 


WORK   OF   ADMINISTRATIVE    AGENCIES 

tion  of  a  new  administrative  board  in  which  are 
united  for  purposes  of  efficiency  and  economy  the 
various  departments.  Thus  under  a  board  of  pub- 
lic works  or  of  pubHc  improvement  are  united  the 
maintenance  work  of  the  city,  and  the  construction 
of  streets,  water  mains,  sewers,  and  so  forth,  each 
of  which  municipal  services  was  formerly  in  charge 
of  a  separate  department. 

The  mayor's  cabinet  in  Kansas  City,  Mis- 
souri, is  an  interesting  experiment  in  correlation. 
A  weekly  conference  of  the  heads  of  all  city  de- 
partments is  held  at  which  questions  from  each 
department  which  affect  the  development  of  the 
entire  city  are  discussed,  and  the  policy  of  each 
department  is  influenced  by  its  effect  on  other 
departments.  For  nine  months  the  experiment  was 
tried  only  in  connection  with  the  city  administra- 
tion. It  succeeded  so  well  that  to  the  members 
of  the  city  administration  were  added  represent- 
atives from  several  organizations  and  industrial 
bodies.  These  conferences  are  said  to  have  re- 
sulted in  an  improvement  in  the  city's  manage- 
ment by  the  securing  of  a  most  desirable  measure 
of  co-operation  between  the  administration  and 
the  tax  payers.  Kansas  City  was  a  most  advan- 
tageous field  for  an  experiment  of  this  kind.  The 
creation  of  the  park  and  boulevard  system  of  the 
city  had  already  produced  the  finest  kind  of  co- 
operation between  property  owners  and  the  park 
commission,  and  an  eager  willingness  on  the  part 
of  the  citizenship  to  contribute  to  the  carrying 

187 


CARRYING   OUT   THE    CITY    PLAN 

out  of  the  unit  idea  as  expressed  in  plans  of  the 
commission. 

The  eHmination  of  ward  representation  in  city 
government  is  a  recent  advance  toward  the  unit 
idea.  It  is  sometimes  expressed  in  the  commission 
form  of  government,  sometimes  in  a  single  city 
council  elected  at  large.  From  the  viewpoint  of 
city  planning  the  most  notable  advantage  of  this 
simplified  form  of  government  is  that  the  adminis- 
tration represents  the  entire  city  and  is  not  a  col- 
lection of  representatives  from  the  several  parts  of 
the  city.  Other  advantages  due  to  a  saving  in 
time  and  money  caused  by  a  smaller  body  with  a 
businesslike  procedure,  are  no  doubt  real.  It  is 
more  satisfactory  in  urging  the  need  of  planning 
measures  to  deal  with  a  few  men,  whether  bad  or 
good,  efficient  or  stupid.  It  is  also  wholesome 
to  fix  the  responsibility  of  a  policy  on  an  admin- 
istration consisting  of  a  few  men  rather  than  to 
trace  the  responsibility  through  a  maze  of  com- 
mittees and  motions  to  an  irresponsible  clerk. 
City  planning  legislation  may  chance  to  succeed 
in  two  chambers  of  a  city  council  in  spite  of  num- 
bers, because  of  the  domination  of  one  or  two  in- 
dividuals; but  when  responsibility  for  success  or 
failure  must  be  fixed,  it  will  not  be  placed  on  those 
individuals  but  ingeniously  distributed  over  va- 
rious committees.  If  the  single  council  of  limited 
number  is  likely  to  produce  better  councilors,  just 
so  far  city  planning  measures  may  be  benefited; 
but  there  is  no  guaranty  of  this  result.     However 

1 88 


WORK   OF    ADMINISTRATIVE    AGENCIES 

constituted,  the  smaller  body  does  represent  the 
entire  city;  and  though  each  individual  member 
will  have  by  natural  and  political  inheritance  a 
desire  for  the  advancement  of  his  own  locality,  he 
may  be  controlled  by  the  greater  fact  that  he  is 
chosen  by  all  the  citizens  of  the  city. 

Boston  is  the  largest  city  with  sufficient  experi- 
ence to  test  this  theory.  Certain  critics  of  the 
charter  of  1909  tried  to  strike  a  locally  popular 
note  by  alleging  that  wards  without  representa- 
tion in  the  council  did  not  get  their  share  of  the  an- 
nual appropriations  for  local  improvements.  This 
statement  is  not  borne  out  by  the  facts.  The 
figures  for  the  years  19 10  and  191 1  show  a  total 
appropriation  of  ^2,132,881  for  local  improve- 
ments excluding  appropriations  for  highways, 
sewers,  bridges,  and  other  improvements  in  which 
the  city  as  a  whole  is  interested.  Of  this  sum, 
$795,163  was  used  in  four  districts  which  had  no 
representative,  as  the  term  was  formerly  used  in 
the  council.  The  entire  membership  in  the  coun- 
cil came  from  six  districts  of  the  city,  or  seventeen 
wards.  Distributing  the  amount  spent  on  these 
districts  among  the  seventeen  wards  would  result 
in  an  average  of  $78,689  each,  with  which  an 
average  of  $90,395  for  each  of  the  eight  wards  in 
unrepresented  districts  compares  very  favorably. 
Five  members  of  the  council  of  nine  live  in  three 
wards  whose  appropriations  for  the  last  two  years 
for  local  improvements  make  a  total  of  $133,000. 
This  is  only  one-sixteenth  of  the  total  appro- 

189 


CARRYING   OUT   THE    CITY    PLAN 

priated,  and  the  remaining  fifteen-sixteenths  is 
for  districts  which  all  together  had  only  a  mi- 
nority in  the  council.  Such  evidence  is  an  inter- 
esting corroboration  of  the  sound  conclusion  that 
the  elimination  of  sectional  representation  is  an 
important  step  toward  the  carrying  out  of  the 
unit  idea  in  comprehensive  city  planning. 

PLANNING  COMMISSIONS 

I .  HISTORY 

The  appointment  of  planning  commissions  is 
the  most  recent  step  in  the  development  of  the 
unit  idea  in  city  planning.  In  theory,  the  func- 
tion of  this  new  agency  is  to  correlate  the  official 
plans  prepared  in  the  various  municipal  depart- 
ments, to  pass  upon  unofficial  plans  or  suggestions 
for  improvement,  and  to  make  plans  of  its  own 
in  all  cases  where  no  existing  agency  has  juris- 
diction. Hartford,  Connecticut,  was  the  first  to 
establish  such  a  commission  under  a  resolution 
of  the  Connecticut  Legislature  of  1907.*  The  Chi- 
cago plan  commission  dates  from  1909;  the  Balti- 
more and  Detroit  commissions  from  the  following 
year. 

In  191 1  Pennsylvania  and  New  Jersey  passed 
general  acts  enabling  cities  of  the  second  class 
(Pittsburgh  and  Scranton)  in  Pennsylvania  and 
cities  of  the  first  class  in  New  Jersey,  to  create  an 
additional  executive  department  to  be  known  as 
the  department  of  city  planning.     In    191 3,   by 

*  See  Appendix,  p.  296. 
190 


WORK   OF    ADMINISTRATIVE    AGENCIES 

general  law,  New  York  state  authorized  the  ap- 
pointment of  planning  commissions  in  all  cities 
and  incorporated  villages ;  Pennsylvania  extended 
the  act  of  191 1  with  important  amendments  to 
cities  of  the  third  class,  and  Massachusetts  made 
planning  commissions  mandatory  in  all  cities  and 
towns  of  over  10,000.  In  the  same  year  by  special 
act  of  the  Connecticut  Assembly  plan  commis- 
sions were  authorized  for  the  cities  of  New  Haven 
and  West  Hartford,  following  the  precedent  of 
Hartford;  in  Ohio,  Cleveland*  and  Dayton  in- 
cluded city  planning  commissions  in  their  new 
city  charters. 

The  following  list  of  active  plan  commissions 
does  not  include  temporary  commissions  appointed 
merely  to  make  a  report  or  prepare  a  city  plan. 


TABLE  8. — YEARS  IN  WHICH  PLANNING  COMMIS- 
SIONS WERE  AUTHORIZED,  AND  SOURCE  OF  AU- 
THORIZATION, FOR  THE  54  CITIES  OR  TOWNS 
HAVING   PLANNING  COMMISSIONS    IN    APRIL,    1914 


City 


Hartford,  Conn. 
Chicago,  111. 
Baltimore,  Md.  . 
Detroit,  Mich.    . 
Jersey  City,  N.  J. 
Newark,  N.  J.    . 
St.  Louis,  Mo.    . 
Pittsburgh,  Pa.  . 
Philadelphia,  Pa. 
Salem,  Mass. 
Lincoln,  Neb. 


Authorized 
by 


Act 

Ordinance 

Act 

Ordinance 

Act 

Act 

Ordinance 

Act 

Ordinance 

Ordinance 

Ordinance 


*  For  text,  see  Appendix,  p.  299. 
191 


CARRYING   OUT   THE    CITY    PLAN 
TABLE   8. — (continued) 


City 

Year 

Authorized 
by 

Trenton,  N.  J 

1912 

Ordinance 

Cincinnati,  Ohio 

1913 

Ordinance 

Scranton,  Pa. 

1913 

Act 

Schenectady,  N.  Y. 

1913 

Ordinance 

Pittsfield,  Mass. 

1913 

Act 

Fitchburg,  Mass. 

1913 

Act 

Waltham,  Mass. 

1913 

Act 

Lawrence,  Mass. 

1913 

Act 

Lowell,  Mass.     . 

1913 

Act 

Springfield,  Mass. 

1913 

Act 

Northampton,  Mass. 

1913 

Act 

Holyoke,  Mass.. 

1913 

Act 

Maiden,  Mass.  . 

1913 

Act 

Louisville,  Ky.    . 

1913 

Ordinance 

New  Haven,  Ct. 

1913 

Act 

New  London,  Ct. 

1913 

Ordinance 

Bridgeport,  Ct.  . 

1913 

Ordinance 

Erie,  Pa.      . 

1913 

Act 

Providence,  R.  I. 

1913 

Ordinance 

Adams,  Mass.  (town' 

1913 

Act 

Chelsea,  Mass.   . 

1913 

Act 

Chicopee,  Mass. 

1913 

Act 

Cambridge,  Mass. 

1913 

Act 

Chester,  Pa. 

1913 

Act 

Easton,  Pa. 

1913 

Act 

Syracuse,  N.  Y. 

1914 

Act 

Meadeville,  Pa.  . 

1914 

Act 

Reading,  Pa. 

1914 

Act 

Scranton,  Pa. 

1914 

Act 

Harrisburg,  Pa.  . 

1914 

Act 

Oil  City,  Pa. 

1914 

Act 

Boston,  Mass.     . 

1914 

Act 

Gloucester,  Mass. 

1914 

Act 

Haverhill,  Mass. 

1914 

Act 

Melrose,  Mass. 

1914 

Act 

Medford,  Mass. 

1914 

Act 

Newton,  Mass.  . 

1914 

Act 

Newburyport,  Mass. 

1914 

Act 

Somerville,  Mass. 

1914 

Act 

Taunton,  Mass. 

1914 

Act 

Watertown,  Mass.  (town) 

1914 

Act 

Framingham,  Mass.  (town) 

1914 

Act 

Binghamton,  N.  Y.   . 

1914 

Act 

192 


WORK   OF    ADMINISTRATIVE    AGENCIES 

A  suburban  metropolitan  plan  commission  was 
also  created  in  191 3  for  Pennsylvania  cities  of 
the  first  class  (Philadelphia),  to  have  jurisdiction 
over  a  district  comprising  the  cities  within  25 
miles  of  Philadelphia.  This  commission  is  to  be 
composed  of  fifteen  members  appointed  by  the 
governor  of  the  state.  Its  aim  is  to  secure  "co- 
ordinating comprehensive  plans  of  highways  and 
roads,  parks  and  parkways,  and  all  other  means  of 
intercommunication;  water  supply,  sewerage  and 
sewage  disposal,  collection  and  disposal  of  garbage, 
housing,  sanitation  and  health,  playgrounds,  civic 
centers,  and  other  public  improvements  that  will 
affect  the  character  of  the  district  as  a  whole  or 
more  than  one  political  unit  within  the  district."* 
The  aims  of  the  commission  can  be  realized  only 
by  recommendation  to  the  several  governmental 
units  contained  in  the  district.  This  legislation  is 
particularly  interesting  since  it  is  the  first  suc- 
cessful attempt  to  create  a  metropolitan  planning 
commission. 

The  commission  of  inquiry  appointed  by  the 
governor  of  Massachusetts  in  191 1  presented  to 
the  legislature  of  1912  a  draft  for  just  such  a 
planning  commission,  which  contained  a  novel 
feature  for  getting  its  plans  carried  out.  Massa- 
chusetts is  well  supplied  with  executive  com- 
missions with  some  planning  functions.  It  has  a 
highway  board,  a  grade  crossing  commission,  a 
transit  commission,  a  gas  and  electric  light  com- 

*  Act  No.  226  of  191 3. 
14  193 


CARRYING   OUT  THE    CITY    PLAN 

mission,  a  railroad  commission,  a  metropolitan 
park  commission,  and  a  metropolitan  water  and 
sewer  board,  all  with  jurisdiction  in  the  metro- 
politan district.  The  commission  of  inquiry  wisely 
recommended  the  necessity  of  keeping  these  exist- 
ing commissions  in  oifice.  Their  tasks  were  large 
enough. 

The  new  commission  was  to  be  distinctly  a 
planning  and  not  an  executing  body.  Its  province 
was  to  be  suggestion,  advice,  supervision,  and 
correlation.  The  cities  and  towns  of  the  metro- 
politan district  were  to  be  offered,  for  the  consum- 
mation of  improvements  classed  as  metropolitan 
by  the  planning  commission,  the  credit  of  the 
state  and  a  direct  contribution  toward  the  cost  of 
improvements  by  the  state  and  by  the  metro- 
politan district  at  large,  if  the  local  unit  accepted 
in  its  development  the  plan  of  the  commission. 
The  device  thus  incorporated  in  the  bill  recog- 
nized two  strongly  rooted  attributes  in  municipal 
character — jealousy  of  local  self-government  and 
openness  to  persuasion  when  the  persuasion  is 
golden.  It  distinctly  kept  hands  off  of  metro- 
politan commissions,  county  commissions,  and 
local  governments,  by  the  provision  that  all  im- 
provements should  be  executed  by  the  body  that 
would  have  executed  therh  before  the  passage  of 
the  bill.  It  offered  merely  to  provide  a  plan  for 
the  whole  district  and  help  on  the  financial  burden. 
All  improvements  in  the  metropolitan  district 
submitted  to  the  proposed  planning  commission 

194 


WORK   OF   ADMINISTRATIVE   AGENCIES 

were  to  be  classified  as  local  improvements,  as 
ordinary  metropolitan  improvements,  or  as  ex- 
traordinary improvements.  In  the  case  of  purely 
local  improvements  the  locality  stood  the  entire 
financial  burden;  in  the  case  of  ordinary  metro- 
politan improvements  the  localities  in  which  the 
improvement  was  located  paid  65  per  cent  of  the 
entire  cost,  the  metropolitan  district  20  per  cent 
and  the  state  10  per  cent;  in  the  case  of  an  extra- 
ordinary metropolitan  improvement  the  distribu- 
tion of  the  expense  was  to  be  determined  by  a 
commission  appointed  by  the  supreme  court  of 
the  state. 

A  feature  of  very  real  financial  assistance  was 
ofi*ered  by  the  provision  that  towns  or  cities  of 
the  district  might  borrow  money  to  meet  the  ex- 
pense of  metropolitan  improvements,  and  this  loan 
would  not  be  considered  in  reckoning  the  debt 
limit.  The  weakness  of  the  device  is  in  the  pro- 
vision that  20  per  cent  of  the  cost  of  metropolitan 
improvements  should  be  paid  by  the  entire  dis- 
trict. It  is  very  questionable  whether  there  is 
unity  enough  in  any  metropolitan  district  to  allow 
a  fixed  assessment  over  the  whole  district  for  an 
improvement  where  the  most  direct  benefit  is  to 
only  two  or  three  towns.  But  this  interesting 
experiment  did  not  survive  the  legislative  hearing. 
It  was  defeated  not  so  much  because  of  opposition 
to  the  principle  of  the  bill  as  out  of  real  or  imagin- 
ary fear  in  the  minds  of  the  political  leaders  in  the 
towns  and  cities  about  Boston,  who  see  in  any 

195 


CARRYING   OUT   THE    CITY    PLAN 

plan  for  a  more  unified  development  of  the  metro- 
politan district  the  domination  of  Boston. 

Another  legislative  experiment  in  city  planning 
which  did  not  come  to  maturity  should  also  be 
mentioned.  In  19 lo  the  city  of  Seattle  adopted 
an  amendment  to  the  city  charter  by  the  addition 
of  a  new  article  which  created  a  municipal  plans 
commission.  Seattle  was  just  then  finishing  some 
costly  reconstruction,  washing  away  grades  and 
widening  important  thoroughfares,  and  the  wis- 
dom of  avoiding  such  an  experience  again  appealed 
to  the  city  with  peculiar  emphasis.  The  amend- 
ment put  on  the  commission  the  duty  of  procuring 
plans  for  the  arrangement  of  the  city  with  a  view 
to  such  expansion  as  would  meet  probable  future 
demands.  Of  the  twenty-one  members  of  the 
commission  seven  represented  the  city  or  county 
government,  and  fourteen  were  appointed  by 
the  mayor  from  nominations  of  fourteen  groups 
representing  architects,  engineers,  business,  real 
estate,  the  water  front  owners,  and  the  public 
service  corporations.  The  commission  served  with- 
out compensation  but  was  authorized  to  employ 
experts,  not  exceeding  three,  to  prepare  a  compre- 
hensive plan. 

So  far  there  is  nothing  new  in  the  legislation, 
but  the  next  provisions  are  unique.  The  report 
was  to  be  presented  to  the  mayor  and  council  not 
later  than  December  30,  191 1,  and 

They  shall  cause  the  recommendations  of  the  com- 
196 


WORK   OF   ADMINISTRATIVE    AGENCIES 

missions  to  be  submitted  to  the  people  at  the  next 
general  or  special  election.  If  a  majority  of  the  voters 
shall  favor  the  adoption  of  said  plan  so  reported  it  shall 
be  adopted  and  shall  be  the  plan  to  be  followed  by  the 
city  executive  departments  in  the  growth,  evolution, 
and  development  of  the  city  of  Seattle  until  modified 
or  amended  at  some  subsequent  election. 

After  a  most  thoroughgoing  study  by  an  expert, 
the  commission  presented  an  excellent  plan  and 
went  out  of  existence  September  30,  191 1.  There 
was  no  provision  in  the  legislation  for  educating 
the  people  sufficiently  to  enable  them  to  cast  an 
intelligent  vote.  The  Seattle  experiment  is  inter- 
esting in  being  the  first  attempt  to  make  the  whole 
electorate  directly  responsible  for  the  direction  of 
the  city's  growth.  It  is  in  accordance  with  the 
democratic  ideas  of  legislation  which  have  come 
out  of  the  west.  The  people  were  not  ready  for 
so  big  a  program  and  defeated  the  project  at  the 
polls  in  the  spring  of  19 12. 

No  one  of  these  commissions  has  had  a  history 
long  enough  to  be  judged  by  its  accomplishments. 
The  Hartford  commission,  which  is  the  oldest,  has 
fulfilled  one  of  its  duties  by  the  publication  of  a 
preliminary  report  embodying  the  recommenda- 
tions of  the  advisory  architects  for  a  plan  of  the 
city.  Its  chief  activity  outside  of  this  has  been 
along  lines  similar  to  these  employed  by  the 
Baltimore  topographical  survey  commission.  De- 
troit's commission,  after  working  without  ade- 
quate appropriation  for  two  years,   has  started 

197 


CARRYING   OUT  THE    CITY    PLAN 

the  preparation  of  a  plan.  The  Newark  com- 
mission under  expert  advice  has  prepared  two 
reports;  one  preliminary  in  character  reviewing 
the  general  problem  and  making  some  recommen- 
dations in  regard  to  the  improvement  of  street  lines 
and  grades  and  street  car  operations;  the  other,  a 
special  study  of  a  most  congested  point  in  Newark 
at  the  junction  of  Broad  and  Market  streets. 
Other  commissions  have  outlined  plans  of  activity. 

2.   THE    FUNCTIONS   OF   A   CITY    PLANNING   COMMISSION 

The  effectiveness  of  any  city  planning  com- 
mission is  bound  to  be  dependent  on  the  attitude 
of  other  existing  administrative  agencies  which 
have  as  a  part  of  their  function  the  planning  and 
execution  of  public  improvements.  This  attitude 
does  not  spring  merely  from  self-interest  of  the 
older  agencies.  If,  for  instance,  the  street  com- 
mission or  the  bureau  of  survey  is  doing  its  work 
of  planning  a  street  system  well  and  seeing  that 
parts  of  it  get  constructed  at  the  proper  time, 
there  would  seem  to  be  little  in  this  line  for  a 
planning  commission.  The  same  may  be  said 
of  the  park  commission,  the  school  board,  and 
others.)  The  city,  in  other  words,  may  have 
admimstrative  agencies  which  are  covering  prac- 
tically the  entire  field  of  municipal  effort  in  plan- 
ning the  streets,  the  parks,  the  public  buildings, 
and  other  works. 

The  legislation  under  which  city  plan  com- 
missions are  established  recognizes  the  difficulty 

198 


WORK   OF   ADMINISTRATIVE   AGENCIES 

in  the  creation  of  a  new  administrative  body 
whose  powers  may  overlap  those  of  existing 
agencies.  This  is  evidenced  particularly  in  the 
provision  covering  membership  and  scope  of 
powers.  Co-operation  with  existing  administra- 
tive agencies  and  with  law  making  bodies  is  aimed 
at  in  Hartford,  in  St.  Louis,  and  in  Salem,  Massa- 
chusetts, by  having  both  the  administrative  and 
legislative  side  of  the  government  represented  on 
the  commission.  In  each  of  these  cities  the  mayor 
is  ex-officio  chairman  of  the  city  plan  commission. 
In  Hartford  seven  of  the  nine  city  plan  commission- 
ers are  members  of  the  city  administration.  Be- 
sides the  mayor,  the  official  members  are  the  city 
engineer,  president  of  the  street  commissioners, 
president  of  the  park  commissioners,  the  super- 
intendent of  parks,  and  a  member  from  both 
branches  of  the  city  council.  In  St.  Louis  seven 
of  the  fifteen  members  are  from  official  life,  the 
mayor,  the  president  of  the  board  of  public  im- 
provement, the  street  commissioner,  the  park 
commissioner,  the  building  commissioner,  the 
president  of  the  city  council,  and  the  speaker  of 
the  house  of  delegates.  In  Salem,  Massachusetts, 
the  city  government  is  represented  in  the  com- 
mission by  the  mayor,  the  president  of  the  board 
of  aldermen,  and  the  president  of  the  common 
council.  Detroit's  commissioner  of  public  works, 
commissioner  of  parks  and  boulevards,  and  city 
engineer  are  ex-officio  members  of  the  plan  com- 
mission, but  without  power  to  vote. 

199 


CARRYING   OUT  THE   CITY    PLAN 

Further  to  avoid  conflict  with  existing  agencies, 
commissions  are  given  very  limited  powers  which 
make  them  hardly  more  than  advisory  bodies. 
That  of  Baltimore,  for  instance,  has  merely  the 
duty  of  investigating  all  plans  proposed  for  the 
extension  of  highways  and  the  establishment  of  a 
civic  center  and  other  public  improvements  in 
connection  therewith,  and  reporting  the  results 
of  its  investigations  to  the  city  council.  Several 
commissions  are  charged  with  the  constructive 
duty  of  preparing  a  systematic  plan,  and  in  con- 
nection therewith  are  given  more  or  less  control 
over  private  platting  in  order  to  compel  conform- 
ity with  the  plan.  The  Detroit  commission  has 
an  additional  power  similar  to  that  given  to  a 
municipal  art  commission.     Section  6  provides: 

No  work  of  art  shall  be  removed,  relegated  or  al- 
tered in  any  way,  nor  shall  any  property  be  acquired 
for  park  or  boulevard  purposes,  nor  playground,  nor 
shall  any  property  be  condemned  for  the  widening  or 
extension  of  any  park,  boulevard  or  public  playground 
unless  the  project  has  been  submitted  to  and  approved 
by  the  city  plan  commission;  nor  shall  any  gift  to  the 
city  of  a  monumental  character  be  accepted  until  the 
sketch,  plan  and  location  of  the  same  has  been  approved 
by  the  city  commission. 

First  Function:  To  Secure  Correlation  of 
Efforts.  But  assuming  existing  agencies  which 
plan  adequately  for  each  class  of  the  physical 
elements  of  a  city  and  which  carry  out  satisfac- 
torily these  several  plans/ there  is  s^till  heeded  a 

2(& 


WORK   OF   ADMINISTRATIVE    AGENCIES 

permanent  body,  non-partisan  in  character,  whose 
primary  function  shall  be  to  harmonize  the  plans 
of  existing  agencies  and  to  bring  forward  for  execu- 
tion those  plans  which  are  most  demanded.  This 
new  agency  should  be  the  constant  guardian  of 
the  city  plan  to  which  every  question  of  planning 
policy  should  be  referred^'ust  as  questions  of 
financial  policy  are  now  referred  to  a  finance 
commission  in  several  cities  of  the  United  States. 
/That  the  lack  of  correlation  is  a  serious  problem 
is  proved  in  the  experience  of  many  cities.  There 
is  no  guarantee  of  co-operation  between  the  several 
administrative  departments  with  planning  func- 
tions. There  is,  of  course,  some  co-operation,  but 
the  maximum  or  minimum  depends  on  nothing 
except  the  good  sense  and  friendly  feeling  oiy 
bureau  heads.  It  is  not  an  unusual  thing  for  the 
street  department  to  spend  some  time  and  some 
money  on  resurfacing,  only  to  have  the  street 
opened  within  a  month  by  the  water  or  sewer  de- 
partment for  the  installation  of  new  water  pipes 
or  drains.  And  what  is  true  of  streets  and  high- 
ways can  be  illustrated  in  other  departments  of 
planning  activity. 

/An  improvement  is  now  too  seldom  considered 
in  its  relation  to  the  whole  plan. /Alternative 
schemes  for  a  subway  are  discussed  and  deter- 
mined in  the  interest  of  those  whose  property  is 
affected,  and  the  effect  of  either  scheme  on  the 
relief  of  congestion  or  the  opening  of  new  territory 
to  residence  gets  scant  consideration.     Street  car 

20 1 


CARRYING   OUT  THE    CITY    PLAN 

companies  and  representatives  of  the  city  and 
property  owners  fasten  on  the  city  a  transit  sys- 
tem approaching  a  maze  in  intricacy  and  leaving 
focal  points  without  connection.  The  transporta- 
tion problem  alone  needs  a  trained  agency  con- 
stantly studying  tendencies  of  retail  trade,  of  the 
drift  of  waterfront  activities,  and  constantly  sug- 
gesting the  need  for  new  connecting  links  either  for 
highways  or  transit  lines. 

^'However  desirable  in  theory  may  be  this  vest- 
ing of  control  over  physical  development  of  the 
city  in  a  new  agency,  there  is  little  or  no  provision 
for  it  in  the  procedure  of  existing  plan  commissions. 
They  are  for  the  most  part  frankly  advisory 
boards,  and  in  some  cases  have  no  power  even  of 
suggestion  unless  called  upon  by  the  mayor  and 
council.  If  the  plan  commission  is  to  be  an 
intelligent  correlating  agency,  there  must  be  pro- 
vision for  constant  reference  to  it  of  new  con- 
struction work  of  all  municipal  departments  even 
at  the  risk  of  swamping  the  clerical  force  of  the 
city  planning  commission  by  a  mass  of  detail  with 
little  bearing  on  the  city  plan.  And  if  any  de- 
partment proposes  a  serious  violation  of  the  plan 
for  the  whole  city,  the  plan  commission  should  have 
the  opportunity  to  arrest  the  proposed  violation 
long  enough  to  get  the  point  at  issue  before  the 
public  and  their  representatives  in  city  council  and 
thus  fix  the  responsibility  for  whatever  action  is 
taken  after  careful  consideration. 

There  are,  of  course,  objections  to  this  modified 
202 


WORK   OF   ADMINISTRATIVE   AGENCIES 

veto  power.  It  tends  to  undo  an  excellent  munici- 
pal reform  by  which  has  been  achieved  the  con- 
centration of  responsibility  for  a  public  action, 
and  it  tends  also  to  produce  delay  in  the  execution 
of  public  work.  But  with  such  a  power  a  judicious 
and  tactful  commission  would  settle  most  differ- 
ences in  conference,  and  without  it  even  an  idealjy^ 
constituted  commission  might  be  helpless.  Just 
what  form  this  veto  shall  take  and  how  it  shall 
affect  the  relations  between  existing  administra- 
tive departments  and  the  new  agency  will  depend 
largely  on  local  conditions,  and  this  question  with 
many  others  of  organization  and  procedure  must 
wait  for  more  than  a  theoretical  answer  until  ex- 
isting commissions  have  had  a  longer  history. 
Interesting  in  this  connection  is  section  3  of  the 
recent  Pennsylvania  act  authorizing  plan  com- 
missions in  third  class  cities,  which  provides  that 
all  bills  and  ordinances  must,  upon  introduction  in 
the  city  council,  be  referred  to  the  plan  commission. 
The  proposed  measures  may  be  disapproved  by 
the  plan  commission  but  disapproval  shall  not 
operate  as  a  veto.* 

Second  Function:  To  Facilitate  Future 
Improvements.  The  second  function  of  the  city 
planning  commission  is  to  suggest  changes  in  the 
way  of  doing  things  calculated  to  facilitate  the 
execution  of  a  plan.  The  city  planning  field  is 
peculiarly  one  for  investigation  and  experimen- 
tation, and  the  city  planning  agency  is  as  necessary 

*  For  text  of  the  act,  see  Appendix,  p.  290. 
203 


CARRYING   OUT  THE    CITY    PLAN 

in  it  as  an  experiment  station  in  the  fields  of  for- 
estry and  agriculture. 

It  took  but  little  experimenting  to  prove  the 
economic  value  of  a  flexible  street  which  may  be 
stretched  to  meet  future  demands.  The  flexibility 
is  produced  sometimes  by  imposing  a  building  line 
set  back  from  the  street  line  varying  distances, — 
even  the  minimum  distance  of  lo  feet  on  either 
side  providing  an  inexpensive  increase  in  the 
street's  width  of  20  feet.  The  same  result  is 
accomplished  by  the  city's  acquiring  a  greater 
width  than  is  at  present  necessary  for  the  use  of 
the  street  and  allowing  a  certain  portion  of  this 
width  on  either  side  to  be  used  by  the  owners  for 
garden  purposes,  but  not  for  buildings  of  any  kind. 

Boston's  experiments  with  her  narrow  streets  in 
congested  retail  districts  have  brought  about  the 
use  of  one-way  streets  and  the  regulations  against 
standing  vehicles.  Other  cities  have  taken  a  cen- 
sus of  traffic  conditions  along  important  traffic 
ways  and,  in  New  York  City  at  least,  there  have 
been  attempts  made  to  direct  the  lines  of  traffic 
particularly  at  congested  centers. 

It  is  possible  to  have  a  degree  of  flexibility  even 
in  an  area  closely  built  up  with  expensive  buildings, 
such  as  downtown  districts  of  any  large  city,  if 
the  planning  board  is  given  the  right  to  modify 
the  provisions  of  the  building  code  in  return  for 
concessions  from  property  owners,  and  a  very 
necessary  widening  of  streets  is  made  possible 
which  otherwise  would  be  prohibitively  expensive. 

204 


WORK   OF    ADMINISTRATIVE    AGENCIES 

In  cities,  for  instance,  which  have  estabHshed  a 
height  limitation  for  buildings,  even  in  the  central 
business  district,  owners  fronting  on  narrow  streets 
might  grant  to  the  city  land  enough  to  give  the 
street  adequate  width  if  their  loss  in  floor  space 
was  compensated,  not  in  money  but  by  allowing 
them  to  exceed  the  height  limitation  by  the  addi- 
tion of  other  stories  to  their  buildings.  A  build- 
ing with  a  loo-foot  frontage  and  loo-foot  depth, 
lo  stories  in  height,  would  lose  in  actual  floor  area 
10,000  feet  by  a  grant  to  the  city  of  10  feet  for 
sidewalk  purposes  along  its  entire  frontage.  By 
adding  another  story  10  to  15  feet  in  height,  9,000 
feet  of  this  loss  would  be  returned.  To  determine 
the  feasibility  of  such  suggestions  as  this  would 
be  particularly  the  province  of  the  city  planning 
board. 

Parks  and  playgrounds  now  purchased  or  ap- 
propriated at  great  expense  and  even  then  but 
meagerly  supplied  in  many  cities,  should  be  re- 
served in  advance  of  actual  need.  Where  the 
problem  has  best  been  solved,  as  in  the  small 
parks  and  playgrounds  of  Chicago,  the  commis- 
sioners are  able  to  locate  wisely  new  parks  and 
playgrounds  in  accordance  with  the  density  of 
population,  as  shown  on  .maps  of  the  city,  which 
are  kept  up  to  date.  The  suggestion  is  that  this 
can  be  done  with  sufficient  accuracy  before  prices 
rise,  and  that  a  planning  board  is  best  qualified 
to  make  such  a  reservation  because  of  its  intimate 


205 


CARRYING   OUT  THE    CITY    PLAN 

knowledge  of  the  trend  of  industry  and  other  fac- 
tors which  determine  the  density  of  population. 

The  plan  commission  should  be  concerned  not 
only  with  the  original  planning  of  the  streets  but 
with  the  changes  of  the  street  system  made  neces- 
sary by  the  location  of  new  industries,  the  loca- 
tion of  new  terminal  stations  either  for  steam 
lines  or  rapid-transit  Hnes,  or  the  appearance  of 
any  new  element  which  will  create  a  focal  center 
and  attract  a  stream  of  travel.  There  is  not  a 
city  of  100,000  in  the  United  States  which  ought 
not  today  to  widen  streets  or  open  new  ones 
in  order  to  give  an  adequate  approach  to  travel 
centers.  If  this  widening  or  opening  were  done 
at  the  time  when  it  could  be  done  most  economic- 
ally and  when  a  planning  board  would  advise  it, 
if  the  problem  were  constantly  studied  by  such  a 
board,  cities  would  be  saved  great  outlays  for 
reconstruction  and  great  losses  through  failure  to 
reconstruct. 

3.    BROAD    OPPORTUNITIES    OF    THE    PLANNING   COMMIS- 
SION 

The  city  planning  board  would  be  quick  to  dis- 
cover desirable  changes  in  legislation.  The  activity 
in  city  planning  legislation  of  the  191 3  Penn- 
sylvania Legislature  shows  what  may  be  accom- 
plished by  a  commission  intimately  acquainted 
with  the  local  difficulties  which  prevent  satisfac- 
tory execution  of  plans.  It  passed  a  city  planning 
act  for  the  cities  and  towns  within  25  miles  of 

206 


WORK   OF    ADMINISTRATIVE    AGENCIES 

Philadelphia.  It  authorized  the  appointment  of 
city  planning  commissions  for  cities  of  the  third 
class.  It  increased  the  power  of  the  Philadelphia 
art  jury  so  that  its  approval  is  made  necessary 
for  the  selection  of  the  site  as  well  as  the  design 
of  public  structures.*  It  granted  to  all  the  cities 
of  the  state  the  power  to  indicate  on  the  official 
plan,  reservations  of  parks  and  playgrounds  in  the 
same  way  as  they  now  are  allowed  to  establish  an 
official  plan  for  streets. 

Various  phases  of  the  planning  problem  are 
from  time  to  time  made  the  subject  of  investiga- 
tion by  special  commissions,  as  for  instance,  the 
Massachusetts  commission  appointed  to  consider 
the  methods  of  land  acquisition  which  have  been 
described  on  page  io6.  Such  studies  might  be 
better  conducted  by  the  plan  commissions  whose 
experience  with  other  planning  problems  would  be 
of  great  value. 

Finally,  the  commission  should  at  all  times  be\ 
a  propagandist  body  educating  the  citizens  to  see 
the  economy  of  planning  in  general  and  to  decide 
every  specific  question  of  the  city's  physical  growth 
from  the  standpoint  of  city  planning.  The  thor- 
oughgoing work  of  the  Chicago  plan  commission 
in  this  field  is  an  example  of  what  can  be  accom- 
plished. 

The  creation  of  a  city  plan  commission  would  be 
justified  if  it  did  nothing  but  safeguard  the  unit 
idea  by  correlating  the  work  of  other  municipal 

*  For  text  of  legislation  see  Appendix,  p.  305. 
207 


CARRYING   OUT   THE    CITY    PLAN 

departments  in  accordance  with  the  city  plan. 
If  it  is  also  to  make  clear  to  the  citizens  the  value 
of  city  planning  and  to  be  a  bureau  of  city  plan- 
ning research,  its  task  will  be  so  consuming  that 
it  need  not  take  over  any  of  the  functions  of  exist- 
N^ng  agencies. 


208 


APPENDICES 


15 


APPENDIX  A 
LEGISLATION  AND  DECISIONS 

I.  RESTRICTIONS  ON  THE  USE  OF  LAND 

A.  BUILDING  LINES 

1 
Charter  of  the  City  of  St.  Louis.  Article  VI,  Sect,  i . 
Boulevards,  Conditions  for  the  establishment. 

The  Municipal  Assembly  may  by  ordinance,  recom- 
mended by  the  Board  of  Public  Improvements,  estab- 
lish and  open  boulevards  or  change  existing  streets 
into  boulevards  .  .  .  and  may  regulate  the  traffic 
thereon,  and  may  exclude  heavy  driving  thereon,  or 
any  kind  of  vehicle  therefrom,  and  may  exclude  and 
prohibit  the  erection  or  establishment  or  maintenance 
of  any  business  houses,  or  the  carrying  on  of  any  busi- 
ness vocation  on  the  property  fronting  on  such  boule- 
vard, and  may  establish  a  building  line  to  which  all 
buildings,  fences  or  other  structures  thereon  shall  con- 
form. .  .  .  Adequate  compensation  shall  be  al- 
lowed the  owners  of  property  fronting  or  bordering 
thereon  for  damages  occasioned  by  the  establishment 
of  a  building  line  on  such  boulevard,  and  by  limiting 
the  use  to  which  such  property  may  be  put  by  the 
owners  thereof. 

211 


CARRYING   OUT  THE    CITY    PLAN 


Acts  of  Indiana,  1909.    Chap.  89,  Sect.  7. 
Building  lines — Cities  of  100,000  or  over. 

The  Board  of  Public  Works  may  establish  a  line 
determining  the  distance  at  which  all  structures  to  be 
erected  upon  any  premises  fronting  any  park,  parkway, 
park  boulevard  or  boulevard  shall  be  erected,  and  may, 
in  the  name  of  the  city  acquire  by  condemnation  the 
right  to  prevent  the  erection  of,  and  to  require  the  re- 
moval of,  all  structures  outside  of  such  lines.  .  .  . 
The  establishing  of  any  building  line  outside  of  any 
park,  parkway,  or  boulevard,  as  herein  provided,  in 
connection  with  the  condemnation  of  the  land  for  the 
same,  shall  be  understood  to  be  condemnation  and  the 
perpetual  annihilation  of  all  rights  of  the  owners  of 
property  which  shall  front  on  such  park,  parkway  or 
boulevard,  or  across  which  such  building  line  shall  run, 
to  erect  any  building  or  structure  whatever  or  any  part 
thereof  between  such  building  line  and  such  boulevard, 
park  or  parkway;  or  such  result  may  be  accomplished 
by  absolute  condemnation  of  the  land,  with  perpetual 
and  irrevocable  free  license  to  use  and  occupy  such 
land  between  any  building  line  established  and  the 
outside  line  of  such  park,  parkway,  park  boulevard  or 
boulevard  for  all  purposes  except  the  erection  of  build- 
ings or  other  structures.  No  subdivision  into  lots  of 
any  lands  lying  within  five  hundred  feet  of  such  boule- 
vards, parks  or  parkways  shall  be  valid  without  the 
approval  of  such  board  of  park  commissioners. 


212 


LEGISLATION    AND   DECISIONS 


Revised  Laws  of  Massachusetts.    Chap.  48,  Sect. 

103,  as  amended  by  Chap.  572  of  Acts  of  1913. 
Building  lines  in  cities  and  towns. 

If  the  city  council  of  a  city  or  if  a  town  accepts  the 
provisions  of  this  section  or  has  accepted  the  corre- 
sponding provisions  of  earlier  laws,  a  building  line  not 
more  than  40  feet  distant  from  the  exterior  line  of  a 
highway  or  town  way  may  be  established  in  the  manner 
provided  for  laying  out  ways,  and  thereafter  no  struc- 
tures shall  be  erected  or  maintained  between  such 
building  line  and  such  way,  except  steps,  windows, 
porticos  and  other  usual  projections  appurtenant  to 
the  front  wall  of  a  building  to  the  extent  prescribed  in 
the  vote  establishing  such  building  line,  and  except 
that  buildings  or  parts  of  buildings  existing  at  the  time 
of  the  establishment  of  the  building  line  may  be  per- 
mitted to  remain  and  to  be  maintained  to  such  extent 
and  under  such  conditions  as  may  be  prescribed  in 
the  vote  establishing  such  building  line.  Whoever  sus- 
tains damage  thereby  shall  have  the  same  remedies 
therefor  as  for  damages  sustained  by  the  laying  out  of 
a  town  way. 

4 

House  of  Representatives,  January  24,  1910. 

61  St  Congress,  2d  Session.     H.  R.  19069.     (Identical 

with  S.  5715) 

A  BILL  providing  for  the  establishment  of  building  lines  and 
special  building  restrictions  in  the  District  of  Columbia. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 

213 


CARRYING   OUT  THE    CITY    PLAN 

lives  of  the  United  States  of  America  in  Congress  assem- 
bled, That  the  Commissioners  of  the  District  of  Colum- 
bia are  hereby  authorized  and  empowered  from  time  to 
time  and  at  all  times  hereafter  by  public  notice  by  adver- 
tisement published  in  some  newspaper  or  newspapers  of 
general  circulation  in  the  said  District  at  least  once  a 
week  for  three  successive  weeks  prior  to  the  expiration 
of  said  notice,  to  designate  any  highway  or  highways, 
street  or  streets,  or  avenue  or  avenues  in  the  District 
of  Columbia  now  existing  or  which  may  hereafter  be 
created  or  dedicated  or  condemned  or  purchased,  or  any 
part  or  parts  thereof,  the  land  fronting  upon  which  shall 
thereafter  be  subject  to  certain  building  restrictions 
(which  restrictions  said  commissioners  may  impose, 
alter,  amend,  or  modify  at  the  time  such  designation  is 
made,  or  at  any  time  or  times  thereafter),  and  the  said 
highways,  streets,  or  avenues,  or  part  or  parts  thereof 
so  designated  shall  be  classed  as  Class  A  streets,  and  all 
other  highways,  streets,  and  avenues,  or  part  or  parts 
thereof  shall  be  classed  as  Class  B  streets,  and  it  shall  be 
the  duty  of  the  said  commissioners,  and  especially  of  the 
engineer  commissioner,  to  give  preference,  in  their  dis- 
cretion, to  Class  A  streets  in  all  recommendations  and 
estimates  for  street  improvements,  and  in  all  matters  of 
sidewalk  construction,  laying  of  curbs,  and  the  mainte- 
nance of  the  surface  of  the  streets.  And  said  commis- 
sioners are  hereby  further  authorized  and  empowered  in 
making,  altering,  amending,  or  modifying  said  special  re- 
strictions to  include  in  whole  or  in  part  the  establishment 
of  building  lines,  prohibitions  as  to  the  erection  or  altera- 
tion of  buildings  designed  or  proposed  to  be  used  for  busi- 
ness purposes,  prohibitions  as  to  the  establishment  of  any 
place  of  business,  and  such  requirements  as  to  height  of 

214 


LEGISLATION    AND   DECISIONS 

buildings,  materials  of  construction,  and  architectural 
design  as  shall  secure,  in  the  judgment  of  said  commis- 
sioners, the  beautiful  and  harmonious  appearance,  as 
viewed  from  the  public  streets,  of  all  structures  to  be  erected 
or  altered  on  the  land  to  which  said  restrictions  shall  apply: 
Provided,  That  no  such  designation  shall  he  made  unless 
the  owners  of  ninety  per  centum,  or  more,  measured  by 
the  front  foot,  of  the  property  fronting  upon  the  street, 
avenue,  or  part  or  parts  thereof  under  consideration  shall 
in  due  form  have  dedicated,  or  granted,  or  conveyed,  or 
assigned  to  the  District  of  Columbia,  in  consideration 
of  benefits  received  or  to  be  received,  easements  in,  to,  and 
upon  their  property  by  virtue  of  which  said  special  re- 
strictions may  be  established:  Provided  further,  That  the 
Commissioners  of  the  District  of  Columbia  may  exer- 
cise their  judgment  as  to  whether  such  special  restric- 
tions shall  cover  only  the  ninety  per  centum  or  more  of 
frontage,  the  owners  of  which  have  conveyed  easements 
as  above  provided,  or,  in  addition  to  such  frontage,  any 
portion  of  the  remaining  property  fronting  on  the 
highway,  street,  or  avenue,  or  part  or  parts  thereof 
under  consideration. 

Sect.  2.  That  if  said  commissioners  in  the  exercise 
of  their  judgment  shall  designate  highways,  streets,  or 
avenues,  or  any  part  or  parts  thereof,  and  shall  impose 
any  special  restrictions  authorized  by  this  Act  so  as  to 
include  property  fronting  on  any  such  highway,  street, 
or  avenue  which  has  not  been  dedicated  or  granted  or 
conveyed  or  assigned  to  the  District  of  Columbia,  then, 
at  any  time  within  one  year  from  the  date  of  any  such 
designation,  and  not  thereafter,  the  owner  or  owners 
thereof,  or  any  person  having  an  interest  therein,  may 
recover  as  damages  just  compensation  from  the  District 

215 


CARRYING   OUT   THE    CITY    PLAN 

of  Columbia  for  the  taking,  if  any,  of  the  easements 
involved  in  said  designation,  subject  to  deduction  for 
benefits;  and  said  damages  and  benefits  and  all  benefits 
herein  mentioned  shall  be  appraised  by  a  commission 
composed  of  three  capable  and  disinterested  persons, 
to  be  appointed  by  the  supreme  court  of  the  District 
of  Columbia,  holding  a  district  court  of  the  United 
States  for  said  District,  upon  application,  in  writing, 
made  within  said  year  and  not  thereafter  by  such 
owner  or  owners  or  person  having  an  interest  against 
the  District  of  Columbia ;  and  upon  failure  of  any  such 
owner  or  owners  or  person  having  said  interest  to  thus 
present  such  claim  within  said  period,  said  right  shall 
cease  and  determine. 

Sect.  3.  That  the  Commissioners  of  the  District  of 
Columbia  be,  and  they  are  hereby,  authorized  and  di- 
rected, as  soon  as  practicable  after  every  recovery  of 
damages  as  just  compensation  as  in  this  Act  provided,  to 
institute  proceedings  in  said  court  to  assess  the  amount  of 
said  damages,  the  interest  thereon,  and  all  costs  whatsoever 
of  the  proceeding  wherein  the  said  damages  have  been 
ascertained  against  and  upon  all  property  covered  by  said 
designation,  pro  rata  in  proportion  as  said  property  may 
he  found  to  be  benefited,  omitting  from  consideration  all 
property  found  by  the  court  in  the  proceeding  to  recover 
said  damages  as  just  compensation  to  have  been  damaged 
than  more  benefited. 

Sections  4-7  inclusive  relate  to  the  procedure  in 
assessing  benefits. 

Sect.  8.  That  the  Commissioners  of  the  District  of 
Columbia  are  hereby  authorized  to  appoint  an  advisory 
commission  to  consist  of  the  inspector  of  buildings  of 
the  District  of  Columbia,  the  municipal  architect  of  said 

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LEGISLATION    AND    DECISIONS 

District,  two  architects  to  be  nominated  by  the  Wash- 
ington Chapter  of  the  American  Institute  of  Architects, 
and  a  landscape  gardener,  the  two  first  named  officials 
to  serve  without  compensation  and  the  other  members 
of  said  commission  to  receive  such  compensation  as  may 
be  fixed,  from  time  to  time,  by  said  commissioners. 
The  duties  of  said  commission  shall  be  to  advise  said 
commissioners  in  all  matters  connected  with  the  pur- 
poses of  this  Act,  and  to  perform  such  other  duties  as 
may  be  assigned  to  it  by  said  commissioners. 

Sect.  9.  That  the  sum  of  fifteen  thousand  dollars,  or 
so  much  thereof  as  may  be  necessary,  is  hereby  appro- 
priated, one  half  out  of  the  revenues  of  the  District  of 
Columbia,  and  the  other  half  out  of  any  moneys  in  the 
United  States  Treasury  not  otherwise  appropriated,  to 
carry  out  the  provisions  of  this  Act. 

Sect.  10.  That  it  shall  be  the  duty  of  all  owners  of, 
and  persons  and  corporations  interested  in,  any  prop- 
erty fronting  upon  any  highway,  street,  avenue,  or 
part  or  parts  thereof,  designated  or  made  subject  to 
any  special  restriction,  or  on  which  any  easement  or 
right  is  taken  or  imposed  by  virtue  of  this  Act,  to 
comply,  in  every  case,  with  such  designation  and 
restriction,  and  in  event  any  such  owner,  person,  or 
corporation,  after  notice  from  the  Commissioners  of 
the  District  of  Columbia  so  to  do,  shall  fail,  neglect,  or 
refuse  to  comply  as  aforesaid,  the  said  commissioners 
are  hereby  authorized  and  empowered,  in  the  name  of 
the  District  of  Columbia,  by  proceedings  in  equity 
in  the  supreme  court  of  the  District  of  Columbia,  to 
obtain,  without  giving  any  bond  or  security  whatso- 
ever in  such  case  at  any  time  or  in  any  court,  an  in- 
junction or  other  proper  process,  mandatory  or  other- 

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CARRYING   OUT   THE    CITY    PLAN 

wise,  to  compel  such  compliance;  and  in  the  enforce- 
ment of  such  process  the  court  shall  have  those  powers 
ordinarily  exercised  by  it  in  compelling  obedience  to 
its  writs  of  injunction  or  mandamus;  and  the  issuance 
of  any  notice  as  aforesaid  by  said  commissioners  shall 
be  prima  facie  evidence  of  the  right  of  the  District  of 
Columbia  to  a  preliminary  injunction  on  the  filing  of 
any  bill,  petition,  or  other  proceeding;  and  the  said 
court  shall  give  precedence  to  every  such  case  and  shall 
adjudge  and  decide  the  same  within  thirty  days  after 
said  case  shall  have  been  submitted;  and  the  opinion 
of  said  court  in  every  such  case  shall  be  rendered  in 
writing  and  shall  be  filed  in  such  case  as  a  part  of  the 
record  thereof. 

B.  BUILDING  HEIGHTS 


Acts  of  Massachusetts,  1898.     (Chap.  452) 

AN  ACT  relative  to  the  height  of  buildings  on  and  near  Cop- 
ley Square  in  the  city  of  Boston. 

Section  i.  Any  building  now  being  built  or  here- 
after to  be  built,  rebuilt,  or  altered  in  the  city  of  Boston 
upon  any  land  abutting  on  St.  James  Avenue  between 
Clarendon  Street  and  Dartmouth  Street,  or  upon  land 
at  the  corner  of  Dartmouth  Street  and  Huntington  Ave- 
nue, now  occupied  by  the  Pierce  Building,  so  called, 
or  upon  land  abutting  on  Dartmouth  Street  now 
occupied  by  the  Boston  Public  Library  building,  or 
upon  land  at  the  corner  of  Dartmouth  Street  and  Boyls- 
ton  Street  now  occupied  by  the  New  Old  South  Church 
building,  may  be  completed,  built,  rebuilt,  or  altered 
to  the  height  of  ninety  feet  and  no  more;  and  upon  any 
land  or  lands  abutting  on   Boylston  Street  between 

218 


LEGISLATION    AND    DECISIONS 

Dartmouth  Street  and  Clarendon  Street  may  be  com- 
pleted, built,  rebuilt,  or  altered  to  the  height  of  one 
hundred  feet  and  no  more;  provided,  however,  that 
there  may  be  erected  on  any  such  building  above 
the  limits  hereinbefore  prescribed,  such  steeples,  towers, 
domes,  sculptured  ornaments,  and  chimneys  as  the 
board  of  park  commissioners  of  said  city  may  approve. 
Section  2  repeals  St.  1896,  c.  313,  and  St.  1897,  c.  379, 
so  far  as  they  limit  the  height  of  buildings  erected  along 
the  line  of  streets,  parkways,  or  boulevards  bordering 
on  public  parks.  Section  j  provides  for  the  payment  of 
damages  to  any  person  owning  or  having  an  interest 
in  an  uncompleted  building  begun  before  the  fourteenth 
day  of  January,  1898,  which  is  affected  by  the  act,  and 
Section  4  provides  for  compensation  to  all  persons  sus- 
taining damages  to  their  property  by  reason  of  the 
limitation  of  the  height  of  buildings  prescribed  by  the  act. 


Attorney  General  vs.  Henry  B.  Williams  et  als. 
174  Mass.  476.     1899. 

Information  in  equity  by  the  attorney  general  to 
restrain  the  erection  and  maintenance  of  a  building  on 
Copley  Square  in  Boston  above  the  height  of  ninety 
feet  prescribed  by  statute  1898,  c.  452,  entitled  "An 
act  relative  to  the  height  of  buildings  on  and  near 
Copley  Square  in  the  city  of  Boston." 

Knowlton,  J.  .  .  .  The  first  question  raised  by 
the  report  is  whether  the  statute  is  constitutional. 
The  streets  mentioned  in  the  statute  are  adjacent  to 
Copley  Square.  On  the  case  as  now  presented  we 
must  assume  that  Copley  Square,  in  the  language  of 
the  information,  "  is  an  open  square  and  a  public  park 

219 


CARRYING   OUT   THE    CITY    PLAN 

intended  for  the  use,  benefit  and  health  of  the  public, 
and  is  surrounded  by  buildings  devoted  to  religious, 
charitable,  and  educational  purposes,  some  of  which 
contain  books,  manuscripts  and  works  of  art  of  great 
value,  many  of  which  are  in  their  nature  irreplaceable/' 
.  .  .  It  adds  to  the  public  park  rights  in  light 
and  air  and  in  the  view  over  adjacent  land  above  the 
line  to  which  buildings  may  be  erected.  These  rights 
are  in  the  nature  of  an  easement  created  by  the  statute 
and  annexed  to  the  park.  Ample  provision  is  made 
for  compensation  to  the  owners  of  the  servient  estates. 
In  all  respects  the  statute  is  in  accordance  with  the  laws 
regulating  the  taking  of  property  by  right  of  eminent 
domain,  if  the  Legislature  properly  could  determine 
that  the  preservation  or  improvement  of  the  park  in 
this  particular  was  for  a  public  use.  The  uses  which 
should  be  deemed  public  in  reference  to  the  right  of  the 
Legislature  to  compel  an  individual  to  part  with  his 
property  for  a  compensation,  and  to  authorize  or  direct 
taxation  to  pay  for  it,  are  being  enlarged  and  extended 
with  the  progress  of  the  people  in  education  and  re- 
finement. Many  things  which  a  century  ago  were 
luxuries  or  were  altogether  unknown,  have  now  be- 
come necessaries.  It  is  only  within  a  few  years  that 
lands  have  been  taken  in  this  country  for  public  parks. 
Now  the  right  to  take  land  for  this  purpose  is  generally 
recognized  and  frequently  exercised.  .  .  .  It  hardly 
would  be  contended  that  the  same  reasons  which  jus- 
tify the  taking  of  land  for  a  public  park  do  not  also 
justify  the  expenditure  of  money  to  make  the  park 
attractive  and  educational  to  those  whose  tastes  are 
being  formed  and  whose  love  of  beauty  is  being  culti- 
vated.    .     .     .     It  is  argued  by  the  defendants  that 

220 


LEGISLATION    AND   DECISIONS 

the  Legislature,  in  passing  this  statute,  was  seeking  to 
preserve  the  architectural  symmetry  of  Copley  Square. 
If  this  is  a  fact,  and  if  the  statute  is  merely  for  the 
benefit  of  individual  property  owners,  the  purpose  does 
not  justify  the  taking  of  a  right  in  land  against  the  will 
of  the  owner.  But  if  the  Legislature,  for  the  benefit 
of  the  public,  was  seeking  to  promote  the  beauty  and 
attractiveness  of  a  public  park  in  the  capital  of  the 
Commonwealth  and  to  prevent  unreasonable  encroach- 
ments upon  the  light  and  air  which  it  had  previously 
received,  we  cannot  say  that  the  law-making  power 
might  not  determine  that  this  was  a  matter  of  such 
public  interest  as  to  call  for  an  expenditure  of  public 
money,  and  to  justify  the  taking  of  private  property. 
While  such  a  determination  should  not  be  made  with- 
out careful  consideration,  and  while  the  governing  ten- 
dency towards  an  enlargement  of  the  field  of  public 
expenditure  should  be  jealously  watched  and  carefully 
held  in  check,  a  determination  of  this  kind  once  made 
by  the  Legislature  cannot  be  lightly  set  aside. 


Acts  of  Massachusetts,  1904.    Chap.  333. 

AN  ACT  relative  to  the  height  of  buildings  in  the  city  of 
Boston 

Section  i.  The  city  of  Boston  shall  be  divided  into 
districts  of  two  classes,  to  be  designated  districts  A  and 
B.  The  boundaries  of  the  said  districts,  established 
as  hereinafter  provided,  shall  continue  for  a  period  of 
fifteen  years,  and  shall  be  determined  in  such  manner 
that  those  parts  of  the  city  in  which  all  or  the  greater 
part  of  the  buildings  situate  therein  are  at  the  time  of 
such  determination  used  for  business  or  commercial 

221 


CARRYING   OUT   THE    CITY    PLAN 

purposes  shall  be  included  in  the  district  or  districts 
designated  A,  and  those  parts  of  the  city  in  which  all 
or  the  greater  part  of  the  buildings  situate  therein  are 
at  the  said  time  used  for  residential  purposes  or  for 
other  purposes  not  business  or  commercial  shall  be  in 
the  district  or  districts  designated  B. 

Section  2.  Upon  the  passage  of  this  act  the  mayor 
of  the  city  shall  appoint  a  commission  of  three  members, 
to  be  called  "Commission  on  Height  of  Buildings  in 
the  City  of  Boston/'  The  commission  shall  imme- 
diately upon  its  appointment  give  notice  and  public 
hearings,  and  shall  make  an  order  establishing  the 
boundaries  of  the  districts  aforesaid,  and,  within  one 
month  after  its  appointment,  shall  cause  the  same  to 
be  recorded  in  the  registry  of  deeds  for  the  county  of 
Suffolk.  The  boundaries  so  established  shall  continue 
for  a  period  of  fifteen  years  from  the  date  of  the  said 
recording.  Any  person  who  is  aggrieved  by  the  said 
order  may,  within  thirty  days  after  the  recording 
thereof,  appeal  to  the  commission  for  a  revision;  and 
the  commission  may,  within  six  months  after  its  ap- 
pointment, revise  such  order,  and  the  revision  shall  be 
recorded  in  the  registry  of  deeds  for  the  county  of 
Suffolk,  and  shall  date  back  to  the  original  date  of 
recording.  The  members  of  the  commission  shall 
serve  until  the  districts  have  been  established  as  afore- 
said; and  any  vacancy  in  the  commission  caused  by 
resignation,  death  or  inability  to  act  shall  be  filled  by 
the  mayor,  on  written  application  by  the  remaining 
members  of  the  commission  or  of  ten  inhabitants  of  the 
city.  The  members  of  the  commission  shall  receive 
such  compensation  as  the  mayor  shall  determine. 

Section  3.  In  the  city  of  Boston  no  building  shall 

222 


LEGISLATION    AND    DECISIONS 

be  erected  to  a  height  of  more  than  one  hundred  and 
twenty-five  feet  above  the  grade  of  the  street  in  any 
district  designated  A,  and  no  building  shall  be  erected 
to  a  height  of  more  than  eighty  feet  above  the  grade 
of  the  street  in  any  district  designated  B.  These  re- 
strictions shall  not  apply  to  grain  or  coal  elevators  or 
sugar  refineries  in  any  district  designated  A,  nor  to 
steeples,  domes,  towers  or  cupolas  erected  for  strictly 
ornamental  purposes,  of  fireproof  material,  on  buildings 
of  the  above  height  or  less  in  any  district. 

The  supreme  judicial  court  and  the  superior  court 
shall  each  have  jurisdiction  in  equity  to  enforce  the 
provisions  of  this  act,  and  to  restrain  the  violation 
thereof. 

Section  4.  This  act  shall  take  effect  upon  its  passage. 

Approved  May  13,  1904. 


Acts  of  Massachusetts,  1905.    Chap.  363. 

AN  ACT  relative  to  the  height  of  buildings  in  the  city  of  Bos- 
ton 

Section  i.  Within  thirty  days  after  the  passage  of 
this  act  the  mayor  of  the  city  of  Boston  shall  appoint 
a  commission  of  three  members  to  determine,  in  ac- 
cordance with  the  conditions  hereinafter  provided,  the 
height  of  buildings  within  the  district  designated  by 
the  commission  on  height  of  buildings  in  the  city  of 
Boston  as  district  B,  in  accordance  with  chapter  three 
hundred  and  thirty-three  of  the  acts  of  the  year  nine- 
teen hundred  and  four. 

Section  2.  Said  commission  shall  immediately  upon 
its  appointment  give  notice  and  public  hearings,  and 
shall  make  an  order  establishing  the  boundaries  of  or 

223 


CARRYING   OUT   THE    CITY    PLAN 

Otherwise  pointing  out  such  parts,  if  any,  of  said  dis- 
trict B  as  it  may  designate  in  which  buildings  may  be 
erected  to  a  height  exceeding  eighty  feet  but  not  ex- 
ceeding one  hundred  feet,  and  the  height  between 
eighty  feet  and  one  hundred  feet  to  which  buildings 
may  so  be  erected,  and  the  conditions  under  which 
buildings  may  be  erected  to  said  height,  except  that 
such  order  may  provide  for  the  erection  of  buildings  as 
aforesaid  to  a  height  not  exceeding  one  hundred  and 
twenty-five  feet  in  that  portion  of  said  district  B  which 
lies  within  fifty  feet  from  the  boundary  line  separating 
said  district  B  from  the  district  designated  by  the  com- 
mission on  height  of  buildings  in  the  city  of  Boston  as 
district  A  in  accordance  with  said  chapter  three  hundred 
and  thirty-three,  provided  said  boundary  line  divides 
the  premises  affected  by  such  order  from  other  ad- 
joining premises  both  owned  by  the  same  person  or 
persons,  and  within  sixty  days  after  its  appointment 
shall  cause  the  same  to  be  recorded  in  the  registry  of 
deeds  for  the  county  of  Suffolk.  Any  person  who  is 
aggrieved  by  such  order  may,  within  sixty  days  after 
the  recording  thereof,  appeal  to  the  commission  for  a 
revision;  and  the  commission  may,  previous  to  the 
first  day  of  January  in  the  year  nineteen  hundred  and 
six,  revise  such  order,  and  the  revision  shall  be  recorded 
in  the  registry  of  deeds  for  the  county  of  Suffolk  and 
shall  date  back  to  the  original  date  of  recording.  The 
boundaries  so  established  shall  continue  for  a  period  of 
fifteen  years  from  the  date  of  the  recording  of  the  order 
made  by  the  commission  on  height  of  buildings  in  the 
city  of  Boston  under  chapter  three  hundred  and  thirty- 
three  of  the  acts  of  the  year  nineteen  hundred  and  four. 
The  members  of  the  commission  shall  receive  such 
compensation  as  the  mayor  shall  determine. 

224 


LEGISLATION    AND   DECISIONS 

Section  3.  Within  such  parts  of  district  B  as  may  be 
designated  by  the  commission  as  aforesaid  (which  may, 
except  as  hereinafter  provided,  include  any  parts  of  said 
district  B  affected  by  prior  acts  Hmiting  the  height  of 
buildings)  buildings  may  be  erected  to  the  height  fixed 
by  the  commission  as  aforesaid,  exceeding  eighty  feet 
but  not  exceeding  one  hundred  feet,  or  one  hundred  and 
twenty-five  feet  as  hereinbefore  provided,  and  subject 
to  such  conditions  as  may  be  fixed  as  aforesaid  by  the 
commission;  but  within  the  following  described  terri- 
tory, to  wit : — Beginning  at  the  corner  of  Beacon  street 
and  Hancock  avenue,  thence  continuing  westerly  on 
Beacon  street  to  Joy  street,  thence  continuing  north- 
erly on  Joy  street  to  Myrtle  street,  thence  continuing 
easterly  on  Myrtle  street  to  Hancock  street,  thence 
continuing  southerly  on  Hancock  street  and  Hancock 
avenue  to  the  point  of  beginning,  no  building  shall  be 
erected  to  a  height  greater  than  seventy  feet,  measured 
on  its  principal  front,  and  no  building  shall  be  erected 
on  a  parkway,  boulevard  or  public  way  on  which  a 
building  line  has  been  established  by  the  board  of  park 
commissioners  or  by  the  board  of  street  commissioners, 
acting  under  any  general  or  special  statute,  to  a  greater 
height  than  that  allowed  by  the  order  of  said  boards; 
and  no  building  upon  land  any  owner  of  which  has 
received  and  retained  compensation  in  damages  for  any 
limitation  of  height  or  who  retains  any  claim  for  such 
damages  shall  be  erected  to  a  height  greater  than  that 
fixed  by  the  limitation  for  which  such  damages  were 
received  or  claimed. 

Section  4.  No  limitations  of  the  height  of  buildings 
in  the  city  of  Boston  shall  apply  to  churches,  steeples, 
towers,  domes,  cupolas,  belfries  or  statuary  not  used 

16  22$ 


CARRYING   OUT   THE    CITY    PLAN 

for  purposes  of  habitation,  nor  to  chimneys,  gas  holders, 
coal  or  grain  elevators,  open  balustrades,  skylights, 
ventilators,  flagstafFs,  railings,  weather  vanes,  soil  pipes, 
steam  exhausts,  signs,  roof  houses  not  exceeding  twelve 
feet  square  and  twelve  feet  high,  nor  to  other  similar 
constructions  such  as  are  usually  erected  above  the 
roof  line  of  buildings. 
Section  5.  This  act  shall  take  effect  upon  its  passage. 
Approved  May  8,  1905. 


Welch  vs.  Swasey.  193  Mass.  364 
This  was  a  petition  for  a  writ  of  mandamus  addressed 
to  members  of  the  board  of  appeal  from  the  building 
commissioner  of  the  city  of  Boston,  ordering  the  re- 
spondents to  direct  the  building  commissioner  to  grant 
to  the  petitioners  a  permit  to  erect  a  building  to  the 
height  of  120  feet,  6  inches.  The  permit  had  been 
refused  by  the  building  commissioner  on  the  ground  that 
the  proposed  structure  would  exceed  the  height  limit 
provided  by  acts  1904,  chapter  333,  and  acts  1905, 
chapter  383.  The  petitioners  appealed  on  the  ground 
that  the  statutes  were  unconstitutional  and  void. 

The  commission  appointed  by  the  mayor  under 
chapter  383  of  the  acts  of  1905,  made  the  following 
orders:  (i)  In  district  B  buildings  may  be  erected  on 
streets  exceeding  64  feet  in  width  to  a  height  equal  to 
one  and  a  quarter  times  the  width  of  the  street  on 
which  the  building  stands,  and  if  situated  on  more  than 
one  street  the  widest  street  should  be  taken,  and  the 
height  of  the  building  is  to  be  made  from  the  mean 
grade  of  the  curbs  of  all  streets  upon  which  the  building 

226 


LEGISLATION    AND    DECISIONS 

is  situated,  and  not  exceeding  one  hundred  feet  in  any 
of  them.  (2)  If  the  street  is  of  uneven  width,  its  width 
will  be  considered  as  the  average  width  opposite  the 
building  to  be  erected.  (3)  The  width  of  a  street  shall 
be  held  to  include  the  width  of  any  space  on  the  same 
side  of  the  street  upon  which  a  building  stands,  upon 
or  within  which  space  no  building  can  be  lawfully 
erected  by  virtue  of  any  building  line  established  by 
the  board  of  street  commissioners,  or  the  board  of 
park  commissioners,  acting  under  general  or  special  laws. 
(4)  All  streets  or  portions  of  streets  upon  which  build- 
ings may  be  erected  on  one  side  only  shall  be  considered 
as  of  a  width  of  80  feet  as  to  that  portion  upon  which 
building  may  be  erected  on  one  side  only.  (5)  In  the 
case  of  irregular  or  triangular  open  spaces  formed  by 
the  intersection  of  streets,  the  width  of  the  street  shall 
be  taken  as  the  width  of  the  widest  street  entering  said 
space  at  the  point  of  entrance.  (6)  No  building  shall 
be  erected  on  a  parkway,  boulevard  or  public  way  on 
which  a  building  line  has  been  established  by  either  of 
said  boards  acting  under  general  or  special  laws  to  a 
height  greater  than  allowed  by  said  general  or  special 
law  nor  otherwise  in  violation  of  section  3  of  said 
chapter  383,  acts  of  1905.  (7)  No  building  shall  be 
erected  to  a  height  greater  than  eighty  feet  unless  its 
width  on  each  and  every  public  street  on  which  it  stands 
will  be  at  least  one  half  its  height.  (8)  Nothing  in 
the  order  shall  be  construed  as  affecting  any  condition 
or  restriction  imposed  by  deed,  agreement  or  by  opera- 
tion of  law  on  any  property  in  said  district  B. 

The  said  commission  further  provides  that  buildings 
may  be  erected  to  a  height  not  exceeding  120  feet  in 
that  portion  of  district  B  as  established  by  the  com- 

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CARRYING   OUT  THE   CITY    PLAN 

mission  on  the  height  of  buildings  in  its  order  dated 
Dec.  3,  1904,  which  Hes  50  feet  westerly  from  the  boun- 
dary line  running  from  fiolumbus  Av.  to  the  center  of 
Boylston  St.  separating  district  B  from  district  A  pro- 
vided that  said  portion  of  district  B  is  owned  by  same 
persons  who  own  adjoining  premises  in  district  A. 

Knowlton,  C.  J.:  The  principal  question  pre- 
sented by  this  case  is  whether  St.  1904,  p.  283,  c.  333, 
and  St.  1905,  p.  309,  c.  383,  and  the  orders  of  the  com- 
missioners appointed  under  them,  relative  to  the  height 
of  buildings  in  Boston,  are  constitutional.  A  jurisdic- 
tional question,  if  the  petitioner  is  entitled  to  relief,  is 
whether  a  remedy  can  be  given  him  by  a  writ  of  man- 
damus. 

The  principal  question  may  be  subdivided  as  follows: 
First,  can  the  Legislature,  in  the  exercise  of  the  police 
power,  limit  the  height  of  buildings  in  cities  so  that 
none  can  be  erected  above  a  prescribed  number  of  feet; 
second,  can  it  classify  parts  of  a  city  so  that  in  some 
parts  one  height  is  prescribed  and  in  others  a  different 
height ;  third,  if  so,  can  it  delegate  to  a  commission  the 
determination  of  the  boundaries  of  these  different  parts, 
so  as  to  conform  to  the  general  provisions  of  the  statute; 
fourth,  can  it  delegate  to  a  commission  the  making  of 
rules  and  regulations  such  as  to  permit  different  heights 
in  different  places,  according  to  the  different  conditions 
in  different  parts  of  one  of  the  general  classes  of  terri- 
tory, made  in  the  original  statute;  fifth,  if  it  can,  are 
the  rules  and  regulations  made  by  the  commissioners 
within  the  statute,  and  within  the  constitutional  author- 
ity of  the  Legislature  and  its  agents? 

In  the  exercise  of  the  police  power  the  Legislature 
may  regulate  and  limit  personal  rights  and  rights  of 

228 


LEGISLATION    AND    DECISIONS 

property  in  the  interest  of  the  public  health,  public 
morals  and  public  safety.  Com.  vs.  Pear,  153  Mass. 
242,  63  N.  E.  719;  Com.  vs.  Strauss,  191  Mass.  545, 
78  N.  E.  136;  California  Reduction  Co.  vs.  Sanitary 
Works,  199  U.  S.  306-318,  26  Sup.  Ct.  100,  50  L.  Ed. 
204.  With  considerable  strictness  of  definition,  the 
general  welfare  may  be  made  a  ground,  with  others,  for 
interference  with  rights  of  property,  in  the  exercise  of 
the  police  power.     Com.  vs.  Strauss,  ubi  supra. 

The  erection  of  very  high  buildings  in  cities,  especially 
upon  narrow  streets,  may  be  carried  so  far  as  materially 
to  exclude  sunshine,  light  and  air,  and  thus  to  affect 
the  public  health.  It  may  also  increase  the  danger  to 
persons  and  property  from  fire,  and  be  a  subject  for 
legislation  on  that  ground.  These  are  proper  subjects 
for  consideration  in  determining  whether  in  a  given 
case,  rights  of  property  in  the  use  of  land  should  be 

interfered  with  for  the  public  good In 

People  vs.  D'Oench,  iii  N.  Y.  359,  18  N.  E.  562,  a 
statute  limiting  the  height  of  dwelling  houses  to  be 
erected  in  the  city  of  New  York,  was  treated  as  un- 
questionably constitutional.  See  i  Abbott,  Mun.  Corp. 
237,  2  Tiedeman  on  State  and  Federal  Control,  754.     . 

.  .  .  It  is  for  the  Legislature  to  determine  whether 
the  public  health  or  public  safety  requires  such  a  limi- 
tation of  the  rights  of  land  owners  in  a  given  case. 
Upon  a  determination  in  the  affirmative,  they  may 
legislate  accordingly. 

The  next  question  is  whether  the  General  Court  may 
establish  different  heights  for  different  neighborhoods, 
according  to  their  conditions  and  the  uses  to  which 
the  property  in  them  is  put.  The  statute  should  be 
adapted  to  the  accomplishment  of  the  purposes  in 

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CARRYING   OUT   THE    CITY    PLAN 

which  it  finds  its  constitutional  justification.  It  should 
be  reasonable,  not  only  in  reference  to  the  interests  of  the 
public,  but  also  in  reference  to  the  rights  of  land  owners. 
If  these  rights  and  interests  are  in  conflict  in  any  degree, 
the  opposing  considerations  should  be  balanced  against 
each  other,  and  each  should  be  made  to  yield  reasonably 
to  those  upon  the  other  side.  The  value  of  land  and 
the  demand  for  space,  in  those  parts  of  Boston  where 
the  greater  part  of  the  buildings  are  used  for  purposes 
of  business  or  commerce,  is  such  as  to  call  for  buildings 
of  greater  height  than  are  needed  in  those  parts  of  the 
city  where  the  greater  part  of  the  buildings  are  used  for 
residential  purposes.  It  was,  therefore,  reasonable  to 
provide  in  the  statute  that  buildings  might  be  erected 
to  a  greater  height  in  the  former  parts  of  the  city  than 
in  the  latter,  even  if  some  of  the  streets  in  the  former 
are  narrower  than  those  in  the  latter. 

The  general  subject  is  one  that  calls  for  a  careful 
consideration  of  conditions  existing  in  different  places. 
In  many  cities  there  would  be  no  danger  of  the  erection 
of  high  buildings  in  such  locations  and  of  such  a 
number  as  to  affect  materially  the  public  health  or 
safety,  and  no  statutory  restrictions  are  necessary.  Such 
restrictions  in  this  country  are  of  very  recent  origin, 
and  they  are  still  uncommon.  Unless  they  place  the 
limited  height  at  an  extreme  point,  beyond  which 
hardly  any  one  would  ever  wish  to  go,  they  should  be 
imposed  only  in  reference  to  the  uses  for  which  the  real 
estate  probably  will  be  needed,  and  the  manner  in 
which  the  land  is  laid  out,  and  the  nature  of  the  ap- 
proaches to  it. 

It  was  decided  in  Com.  vs.  Boston  Advertising  Com- 
pany, 1 88  Mass.  348,  74  N.  E.  601,  69  L.  R.  A.  817,  103 

230 


LEGISLATION    AND   DECISIONS 

Am.  St.  Rep.  494,  that  a  statute  of  this  kind  cannot 
constitutionally  be  passed  for  a  mere  esthetic  object. 
It  was  said  in  Attorney  General  vs.  Williams,  174  Mass. 
476-480,  55  N.  E.  77,  that  the  statute  then  before  the 
court,  enacted  under  the  right  of  eminent  domain,  with 
compensation  for  landowners,  would  have  been  un- 
constitutional if  it  had  been  passed  "to  preserve  the 
architectural  symmetry  of  Copley  Square, "  or  "  merely 
for  the  benefit  of  individual  landowners.''  The  in- 
habitants of  a  city  or  town  cannot  be  compelled  to  give 
up  rights  in  property,  or  to  pay  taxes,  for  purely 
aesthetic  objects;  but  if  the  primary  and  substantive 
purpose  of  the  legislation  is  such  as  justifies  the  act,  con- 
siderations of  taste  and  beauty  may  enter  in,  as  auxiliary. 
We  are  of  opinion  that  the  provision  of  St.  1904,  p. 
283,  c.  333,  for  dividing  parts  of  the  city  into  two 
classes,  in  each  of  which  there  is  a  prescribed  limit  for 
the  height  of  buildings,  was  within  the  power  of  the 
Legislature,  and  in  accordance  with  the  constitutional 
principle  applicable  to  the  enactment. 

The  delegation  to  a  commission  of  the  determination 
of  the  boundaries  of  these  parts  of  the  two  classes  was 
within  the  constitutional  power  of  the  General  Court. 
The  work  of  the  commissioners  under  the  first  act  was 
not  legislation,  but  the  ascertainment  of  facts,  and 
the  application  of  the  statute  to  them  for  purposes  of 
administration.  Such  subsidiary  work  by  a  com- 
mission is  justified  in  many  cases. 

The  delegation  to  a  commission  of  the  power  to  fix 
difi'erent  heights  in  difi'erent  places  in  the  parts  included 
in  class  B,  under  St.  1905,  p.  309,  c.  363,  goes  further, 
and  allows  the  commissioners  to  make  rules  and  reg- 

231 


CARRYING   OUT  THE    CITY    PLAN 

ulations  which  are  in  the  nature  of  subsidiary  legisla- 
tion. This  is  within  the  principle  referred  to  in  B  rod- 
bine  vs.  Revere,  ubi  supra,  and  in  some  of  the  other 
cases  above  cited.  It  is  that  under  our  system  in 
Massachusetts,  matters  of  local  self-government  might 
always  be  intrusted  to  the  inhabitants  of  towns.  On 
the  establishment  of  cities  this  power  is  exercised  by 
the  city  council,  or  by  some  board  or  commission  repre- 
senting the  inhabitants.  Even  in  towns  such  powers 
have  long  been  exercised  by  local  boards,  for  example, — 
by  the  board  of  health.  Originally  such  representa- 
tives of  the  local  authority  were  elected  by  the  people; 
but  for  many  years  local  boards,  appointed  by  the 
governor  or  other  executive  authority,  have  sometimes 
been  entrusted  with  the  exercise  of  this  legislative 
authority.  It  is  true  that  they  are  further  from  the 
people  than  the  members  of  a  city  council,  for  whom 
the  people  vote,  but  in  a  true  sense  they  represent  the 
inhabitants  in  matters  of  this  kind.  Our  decisions 
cover  this  point  also.  Com.  vs.  Plaisted  and  Brodbine 
vs.  Revere,  ubi  supra.  It  does  not  follow  that  all  rules 
and  regulations  made  under  such  a  delegation  of 
authority  would  be  constitutional,  merely  because  the 
original  statute  is  unobjectionable.  Such  rules  may  be 
tested  by  the  courts  to  see  whether  they  are  reason- 
ably directed  to  the  accomplishment  of  the  purpose  on 
which  the  constitutional  authority  rests,  and  whether 
they  have  a  real,  substantial  relation  to  the  public 
objects  which  the  government  can  accomplish.  A 
statute,  ordinance  or  regulation  will  not  be  held  void 
merely  because  the  judges  differ  from  the  legislators 
as  to  the  expediency  of  its  provisions.  But  if  it  is 
arbitrary  and  unreasonable,  so  as  unnecessarily  to  be 

232 


LEGISLATION    AND   DECISIONS 

subversive  of  rights  of  property,  it  will  be  set  aside  by 
the  courts 

We  do  not  see  that  the  action  of  the  commissioners, 
under  St.  1905,  was  beyond  their  power  under  the  Con- 
stitution. It  was  seemingly  in  accordance  with  the 
general  purpose  of  the  Legislature,  and  was  directed  to 
considerations  which  they  deemed  proper  in  adjusting 
the  rights  and  interests  of  property  owners  and  the 
public.  The  question  is  not  whether  the  court  deems 
all  the  provisions  wise;  but  whether  they  appear  to  be 
outside  of  the  constitutional  power  of  the  commission. 
In  prescribing  heights  in  the  district,  the  commissioners 
might  make  the  width  of  the  streets  on  .which  a  build- 
ing was  to  be  erected  one  factor  to  be  considered. 
Their  action  in  this  particular  relates  wholly  to  build- 
ings in  class  B,  which  includes  only  the  residential  parts 
of  the  city. 

We  cannot  say  that  the  prohibition  of  the  erection 
of  a  building  of  a  greater  height  than  80  feet  in  class  B, 
unless  its  width  "on  each  and  every  public  street  on 
which  it  stands  will  be  at  least  one-half  its  height,'* 
was  entirely  for  aesthetic  reasons.  We  conceive  that 
the  safety  of  adjoining  buildings,  in  view  of  the  risk 
of  the  falling  of  walls  after  a  fire,  may  have  entered 
into  the  purpose  of  the  commissioners.  We  are  of 
opinion  that  the  statutes  and  the  orders  of  the  com- 
missioners are  constitutional. 

We  think  that  the  court  has  jurisdiction  to  dispose 
of  the  case  in  the  merits,  under  this  petition  for  a  writ 
of  mandamus.  The  wrong  alleged  is  that  the  build- 
ing commissioner,  and  afterwards  the  board  of  appeal, 
refused  to  give  the  petitioner  a  permit  to  erect  a  build- 
ing.    It  is  conceded  that  he  was  not  entitled  to  a  per- 

233 


CARRYING   OUT  THE    CITY    PLAN 

mit  if  the  statutes  and  orders  referred  to  are  constitu- 
tional. The  petitioner  alleges  that  the  board  of  appeal 
refused  to  do  their  duty,  and  that  his  only  effectual 
remedy  is  by  a  writ  of  mandamus,  ordering  them  to 
grant  a  permit.  The  case  comes  within  the  general 
rule  giving  jurisdiction  to  issue  such  writs.  Farming- 
ton  River  Water  Power  v.  County  Commissioners,  1 12 
Mass.  206-212;  Carpenter  vs.  County  Commissioners, 
21  Pick.  258-259;  Attorney  General  vs.  Boston,  123 
Mass.  460.  See  Locke  vs.  Selectmen  of  Lexington,  122 
Mass.  290;  Attorney  General  vs.  Northampton,  143 
Mass.  589,  10  N.  E.  450. 

The  building  commissioner  and  the  board  of  appeals 
are  not  judicial  officers.  St.  1892,  p.  471,  c.  419;  St, 
1894,  p.  494,  c.  443.  The  fact  that  a  refusal  to  act  is 
founded  on  a  mistake  of  law  does  not  preclude  a  remedy 
by  a  writ  of  mandamus.  In  cases  where  the  duty  to 
perform  an  act  depends  solely  on  the  question  whether 
a  statute  or  ordinance  is  constitutional  and  valid,  the 
question  may  sometimes  be  determined  on  a  petition 
for  a  writ  of  mandamus.  Attorney  General  vs.  Boston, 
123  Mass.  450;  Warren  vs.  Charlestown,  2  Gray,  84; 
Larcom  vs.  Olin,  160  Mass.  102-1 10,  35  N.  E.  113. 

Petition  dismissed. 

6 

Welch,  Trustee,  vs.  Swasey,  et  al.  29  U.  S.  Supreme 
Court  Reporter.  567,  Oct.,  1908 
In  error  to  the  Supreme  Judicial  Court  of  the  State 
of  Massachusetts  to  review  a  judgment  denying  a 
mandamus  to  compel  the  board  of  appeal  from  the 
building  commissioner  of  the  city  of  Boston  to  issue  a 
building  permit.    Affirmed. 

234 


LEGISLATION    AND    DECISIONS 

Statement  by  Mr.  Justice  Peckham: 

The  plaintiff  in  error  duly  applied  to  the  justices  of 
the  supreme  judicial  court  of  the  state  of  Massachu- 
setts for  a  mandamus  against  the  defendants,  who  con- 
stitute a  board  of  appeal  from  the  building  commis- 
sioner of  the  city  of  Boston,  to  compel  the  defendants 
to  issue  a  permit  to  him  to  build  on  his  lot  on  the  corner 
of  Arlington  and  Marlborough  streets,  in  that  city. 
The  application  was  referred  by  the  justice  presiding 
to  the  full  court,  and  was  by  it  denied  (193  Mass.  364, 
118  Am.  St.  Rep.  523,  79  N.  E.  745),  and  the  plaintiff 
has  brought  the  case  here  by  writ  of  error. 

The  action  of  defendants  in  refusing  the  permit  was 
based  on  the  statutes  of  Massachusetts,  chap.  333  of 
the  Acts  of  1904,  and  chap.  383  of  the  Acts  of  1905. 
The  reason  for  the  refusal  to  grant  the  building  permit 
was  because  the  building  site  for  the  proposed  building 
was  situated  in  one  of  the  districts  B,  as  created  under 
the  provisions  of  the  acts  mentioned,  in  which  districts 
the  height  of  the  buildings  is  limited  to  80,  or,  in  some 
cases,  to  100  feet,  while  the  height  of  buildings  in  dis- 
tricts A  is  limited  to  125  feet.  The  height  of  the 
building  which  plaintiff  in  error  proposed  to  build  and 
for  which  he  asked  the  building  permit  was  stated  by 
him  in  his  application  therefor  to  be  124  feet,  6  inches. 

The  designation  of  what  parts  in  districts  B  and  upon 
what  conditions  a  building  could  be  therein  erected 
more  than  80  while  not  more  than  100  feet  high  was  to 
be  made  by  a  commission,  as  provided  for  in  the  act 
of  1905,  and  the  commission  duly  carried  out  the  pro- 
visions of  the  act  in  that  respect.  The  sole  reason  for 
refusing  the  permit  was  on  account  of  the  proposed 
height  of  the  building  being  greater  than  the  law  allowed. 

235 


CARRYING   OUT   THE   CITY    PLAN 

The  plaintiflF  in  error  contended  that  the  defendants 
were  not  justified  in  their  refusal  to  grant  the  permit, 
because  the  statutes  upon  which  their  refusal  was 
based  were  unconstitutional  and  void;  but  he  con- 
tended that,  if  they  were  valid,  the  defendants  were 
justified  in  their  refusal. 

The  court,  while  deciding  that  mandamus  was  a 
proper  remedy,  held  that  the  statutes  and  the  reports 
of  the  commissions  thereunder  were  constitutional. 

Mr.  Justice  Peckham  delivered  the  opinion  of  the 
court : 

The  ground  of  objection  of  plaintiff  in  error  to  this 
legislation  is  that  the  statutes  unduly  and  unreasonably 
infringe  upon  his  constitutional  rights  (a)  as  to  taking 
of  property  without  compensation;  (b)  as  to  denial  of 
equal  protection  of  the  laws. 

Plaintiff  in  error  refers  to  the  existence  of  a  general 
law  in  Massachusetts,  applicable  to  every  city  therein, 
limiting  the  height  of  all  buildings  to  125  feet  above  the 
grade  of  the  street  (Acts  of  1891,  Chap.  355),  and  states 
that  he  does  not  attack  the  validity  of  that  act  in  any 
respect,  but  concedes  that  it  is  constitutional  and 
valid.  See  also  on  same  subject.  Acts  of  1892,  Chap. 
419,  Par.  25,  making  such  limitation  as  to  the  city  of 
Boston.  His  objection  is  directed  to  the  particular 
statutes  because  they  provide  for  a  much  lower  limit 
in  certain  parts  of  the  city  of  Boston,  to  be  designated 
by  a  commission,  and  because  a  general  restriction  of 
height  as  low  as  80  or  100  feet  over  any  substantial 
portion  of  the  city  is,  as  he  contends,  an  unreasonable 
infringement  upon  his  rights  of  property;  also  that  the 
application  of  those  limits  to  districts  B,  which  com- 

236 


LEGISLATION    AND    DECISIONS 

prise  the  greater  part  of  the  city  of  Boston,  leaving  the 
general  125-feet  limit  in  force  in  those  portions  of  the 
city  which  the  commission  should  designate  (being  the 
commercial  districts),  is  an  unreasonable  and  arbitrary 
denial  of  equal  rights  to  the  plaintiff  in  error  and  others 
in  like  situation. 

Stating  his  objections  more  in  detail,  the  plaintiff  in 
error  contends  that  the  purposes  of  the  acts  are  not 
such  as  justify  the  exercise  of  what  is  termed  the  police 
power,  because,  in  fact,  their  real  purpose  was  of  an 
esthetic  nature,  designed  purely  to  preserve  architec- 
tural symmetry  and  regular  sky  lines,  and  that  such 
power  cannot  be  exercised  for  such  a  purpose.  It  is 
further  objected  that  the  infringement  upon  property 
rights  by  these  acts  is  unreasonable  and  disproportioned 
to  any  public  necessity,  and  also  that  the  distinction 
between  125  feet  for  the  height  of  buildings  in  the  com- 
mercial districts  described  in  the  acts,  and  80  to  100 
feet  in  certain  other  or  so-called  residential  districts, 
is  wholly  unjustifiable  and  arbitrary,  having  no  well- 
founded  reason  for  such  distinction,  and  is  without  the 
least  reference  to  the  public  safety,  as  from  fire,  and 
inefficient  as  means  to  any  appropriate  end  to  be  at- 
tained by  such  laws. 

In  relation  to  these  objections  the  counsel  for  the 
plaintiff  in  error,  in  presenting  his  case  at  bar,  made  a 
very  clear  and  able  argument. 

Under  the  concession  of  counsel,  that  the  law  limiting 
the  height  of  building  to  125  feet  is  valid,  we  have  to 
deal  only  with  the  question  of  the  validity  of  the  pro- 
visions stated  in  these  statutes  and  in  the  conditions 
provided  for  by  the  commissions,  limiting  the  height 
in  districts  B  between  80  and  100  feet. 

237 


CARRYING   OUT   THE    CITY    PLAN 

We  do  not  understand  that  the  plaintiff  in  error 
makes  the  objection  of  illegahty  arising  from  an  al- 
leged delegation  of  legislative  power  to  the  commis- 
sions provided  for  by  the  statutes.  At  all  events,  it 
does  not  raise  a  Federal  question.  The  state  court 
holds  that  kind  of  legislation  to  be  valid  under  the  state 
Constitution,  and  this  court  will  follow  its  determina- 
tion upon  that  question. 

We  come,  then,  to  an  examination  of  the  question 
whether  these  statutes  with  reference  to  limitations  on 
height  between  80  and  100  feet,  and  in  no  case  greater 
than  100  feet,  are  valid.  There  is  here  a  discrimination 
of  classification  between  sections  of  the  city,  one  of 
which,  the  business  or  commercial  part,  has  a  limita- 
tion of  125  feet,  and  the  other,  used  for  residential 
purposes,  has  a  permitted  height  of  buildings  from  80 
to  1 00  feet. 

The  statutes  have  been  passed  under  the  exercise 
of  so-called  police  power,  and  they  must  have  some  fair 
tendency  to  accomplish,  or  aid  in  the  accomplishment 
of,  some  purpose  for  which  the  legislature  may  use  the 
power.  If  the  statutes  are  not  of  that  kind,  then  their 
passage  cannot  be  justified  under  that  power.  These 
principles  have  been  so  frequently  decided  as  not  to 
require  the  citation  of  many  authorities.  If  the  means 
employed,  pursuant  to  the  statute,  have  no  real,  sub- 
stantial relation  to  a  public  object  which  government 
can  accomplish,  if  the  statutes  are  arbitrary  and  un- 
reasonable, and  beyond  the  necessities  of  the  case,  the 
courts  will  declare  their  invalidity. 

In  passing  upon  questions  of  this  character  as  to 
the  validity  and  reasonableness  of  a  discrimination  or 
classification  in  relation  to  limitations  as  to  height  of 

238 


LEGISLATION    AND   DECISIONS 

buildings  in  a  large  city,  the  matter  of  locality  assumes 
an  important  aspect.  The  particular  circumstances 
prevailing  at  the  place  or  in  the  state  where  the  law  is 
to  become  operative, — whether  the  statute  is  really 
adapted,  regard  being  had  to  all  the  different  and 
material  facts,  to  bring  about  the  results  desired  from 
its  passage;  whether  it  is  well  calculated  to  promote 
the  general  and  public  welfare, — are  all  matters  which 
the  state  court  is  familiar  with;  but  a  like  familiarity 
cannot  be  ascribed  to  this  court,  assuming  judicial 
notice  may  be  taken  of  what  is  or  ought  to  be  generally 
known.  For  such  reason  this  court,  in  cases  of  this 
kind,  feels  the  greatest  reluctance  in  interfering  with 
the  well-considered  judgments  of  the  courts  of  a  state 
whose  people  are  to  be  affected  by  the  operation  of  the 
law.  The  highest  court  of  the  state  in  which  statutes 
of  the  kind  under  consideration  are  passed  is  more 
familiar  with  the  particular  causes  which  led  to  their 
passage  (although  they  may  be  of  a  public  nature)  and 
with  the  general  situation  surrounding  the  subject- 
matter  of  the  legislation  than  this  court  can  possibly 
be.  We  do  not,  of  course,  intend  to  say  that,  under 
such  circumstances,  the  judgment  of  the  state  court 
upon  the  question  will  be  regarded  as  conclusive,  but 
simply  that  it  is  entitled  to  the  very  greatest  respect, 
and  will  only  be  interfered  with,  in  cases  of  this  kind, 
where  the  decision  is,  in  our  judgment,  plainly  wrong. 
In  this  case  the  supreme  judicial  court  of  the  state 
holds  the  legislation  valid,  and  that  there  is  a  fair 
reason  for  the  discrimination  between  the  height  of 
buildings  in  the  residential  as  compared  with  the  com- 
mercial districts.  That  court  has  also  held  that  reg- 
ulations in  regard  to  the  height  of  buildings,  and  in 

239 


CARRYING   OUT   THE    CITY    PLAN 

regard  to  their  mode  of  construction  in  cities,  made  by 
legislative  enactments  for  the  safety,  comfort,  or  con- 
venience of  the  people,  and  for  the  benefit  of  property 
owners  generally,  are  valid.  Atty.  Gen.  vs.  Williams 
(Knowlton  vs.  Williams)  174  Mass.  476,  47  L.  R.  A. 
314,  55,  N.  E.  77.  We  concur  in  that  view,  assuming, 
of  course,  that  the  height  and  conditions  provided  for 
can  be  plainly  seen  to  be  not  unreasonable  or  inappro- 
priate. 

In  relation  to  the  discrimination  or  classification  made 
between  the  commercial  and  the  residential  portion  of 
the  city,  the  state  court  holds  in  this  case  that  there  is 
reasonable  ground  therefor,  in  the  very  great  value  of 
the  land  and  the  demand  for  space  in  those  parts  of 
Boston  where  a  greater  number  of  buildings  are  used 
for  the  purposes  of  business  or  commercially  than 
where  the  buildings  are  situated  in  the  residential 
portion  of  the  city,  and  where  no  such  reasons  exist 
for  high  buildings.  While  so  deciding,  the  court  cited, 
with  approval.  Com.  vs.  Boston  Advertising  Co.  188 
Mass.  348,  69  L.  R.  A.  517,  108  Am.  St.  Rep.  494,  74 
N.  E.  601;  which  holds  that  the  police  power  cannot 
be  exercised  for  a  merely  esthetic  purpose.  The  court 
distinguishes  between  the  two  cases,  and  sustains  the 
present  statutes.  As  to  the  condition  adopted  by  the 
commission  for  permitting  the  erection,  in  either  of  the 
districts  B,  that  is,  the  residential  portion,  of  buildings 
of  over  80  feet,  but  never  more  than  100,  that  the  width 
on  each  and  every  public  street  on  which  the  building 
stands  shall  be  at  least  one  half  its  height,  the  court 
refuses  to  hold  that  such  condition  was  entirely  for 
esthetic  reasons.  The  chief  justice  said:  "We  con- 
ceive that  the  safety  of  adjoining  buildings,  in  view  of 

240 


LEGISLATION    AND    DECISIONS 

the  risk  of  the  falling  of  walls  after  a  fire,  may  have 
entered  into  the  purpose  of  the  commissioners.  We 
are  of  opinion  that  the  statutes  and  the  orders  of  the 
commissioners  are  constitutional/' 

We  are  not  prepared  to  hold  that  this  limitation  of 
80  to  loo  feet,  while  in  fact  a  discrimination  or  classifi- 
cation, is  so  unreasonable  that  it  deprives  the  owner 
of  the  property  of  its  profitable  use  without  justifica- 
tion, and  that  he  is  therefore  entitled  under  the  Con- 
stitution to  compensation  for  such  invasion  of  his 
rights.  The  discrimination  thus  made  is,  as  we  think, 
reasonable,  and  is  justified  by  the  police  power. 

It  might  well  be  supposed  that  taller  buildings  in  the 
commercial  section  of  the  city  might  be  less  dangerous 
in  case  of  fire  than  in  the  residential  portion.  This 
court  is  not  familiar  with  the  actual  facts,  but  it  may  be 
that,  in  this  limited  commercial  area,  the  high  buildings 
are  generally  of  fireproof  construction;  that  the  fire 
engines  are  more  numerous  and  much  closer  together 
than  in  the  residential  portion,  and  that  an  unlimited 
supply  of  salt  water  can  be  more  readily  introduced 
from  the  harbor  into  the  pipes,  and  that  few  women 
or  children  are  found  there  in  the  daytime,  and  very 
few  people  sleep  there  at  night.  And  there  may,  in 
the  residential  part,  be  more  wooden  buildings,  the 
fire  apparatus  may  be  more  widely  scattered,  and  so 
situated  that  it  would  be  more  difficult  to  obtain  the 
necessary  amount  of  water,  as  the  residence  quarters 
are  more  remote  from  the  water  front,  and  that  many 
women  and  children  spend  the  day  in  that  section,  and 
the  opinion  is  not  strained  that  an  undiscovered  fire  at 
night  might  cause  great  loss  of  life  in  a  very  high  apart- 
ment house  in  that  district.    These  are  matters  which, 

»7  241 


CARRYING   OUT   THE    CITY    PLAN 

it  must  be  presumed,  were  known  by  the  legislature, 
and  whether  or  not  such  were  the  facts  was  a  question, 
among  others,  for  the  legislature  to  determine.  They 
are  asserted  as  facts  in  the  brief  of  the  counsel  for  the 
city  of  Boston.  If  they  are,  it  would  seem  that  ample 
justification  is  therein  found  for  the  passage  of  the 
statutes,  and  that  the  plaintiff  in  error  is  not  entitled 
to  compensation  for  the  reasonable  interference  with 
his  property  rights  by  the  statutes.  That,  in  addition 
to  these  sufficient  facts,  considerations  of  an  esthetic 
nature  also  entered  into  the  reasons  for  their  passage, 
would  not  invalidate  them.  Under  these  circumstances 
there  is  no  unreasonable  interference  with  the  rights  of 
property  of  the  plaintiff  in  error,  nor  do  the  statutes 
deprive  him  of  the  equal  protection  of  the  laws.  The 
reasons  contained  in  the  opinion  of  the  state  court  are, 
in  our  view,  sufficient  to  justify  their  enactment.  The 
judgment  is  therefore  affirmed. 

7 
Absolute  Height  Limitations 
Baltimore,  Md.        17$  feet. 
Boston  125  ft.  or  2)4  times  width  of  widest 

street  on  which  building  fronts  in 

business  section. 

80  ft.  in  residence  section. 
Charleston,  S.  C.      125  ft.  or  2yi  times  width  of  widest 

street,  as  in  Boston. 
Chicago  200  ft. 

Cleveland  200  ft.  or  2>^  times  width  of  widest 

street,  as  in  Boston. 
Erie,  Pa.  200  ft.  or  2yi  times  width  of  widest 

street,  as  in  Boston. 
242 


LEGISLATION    AND    DECISIONS 

Los  Angeles 

1 50  ft. 

Manchester,  N.  H. 

125  ft. 

Newark,  N.  J. 

200  ft. 

Portland,  Oregon 

160  ft. 

Scranton,  Pa. 

125  ft. 

Worcester,  Mass. 

125  ft. 

Denver,  Colo. 

12  stories. 

Providence,  R.  1. 

120  ft. 

C  "SURVEY  LINES" 
FuRMAN  St.  17  Wendell  (N.  Y.)  649.     1836 

By  a  law  of  April  12,  1816,  section  18,  a  survey  of  the 
village  of  Brooklyn  was  to  be  made  and  the  resulting 
map  was  to  constitute  a  permanent  plan  for  laying  out 
the  streets  of  Brooklyn.  The  act  provided  that  own- 
ers who  violated  the  plan  were  not  to  receive  damages. 

The  court,  in  upholding  this  provision,  found  that 
unless  damages  were  withheld  from  owners  building 
in  designated  lines  of  streets,  section  18  of  the  act  would 
be  nugatory.  The  legislation  clearly  intended  that 
improvements  within  the  street  lines  should  not  be 
paid  for.  "  By  expensive  erections  an  owner  other- 
wise might  bring  an  enormous  burden  upon  others  for 
opening  the  street." 

This  decision  was  cited  with  approval  and  followed 
in  the  case  of  Re  Dist.  of  City  of  Pittsburgh,  decided 
in  1 84 1,  2  W.  &  S.  320.  This  language  is  found  in  the 
opinion:  "The  mere  laying  out  of  streets  cannot  be 
said  of  itself  to  be  a  taking  of  the  property  of  individuals, 
upon  which  they  are  laid  out,  for  public  use  at  some 
future  day,  but  rather  a  designation  of  what  may  be 
required  for  that  purpose  thereafter,  so  that  the  owners 

243 


CARRYING   OUT   THE   CITY    PLAN 

of  the  property  may  in  due  time  be  fully  apprised  of 
what  is  anticipated  and  regulate  the  subsequent  im- 
provements, which  they  shall  make  thereon  accordingly. 

.  .  .  Until  the  actual  opening  "  the  owners  thereof 
continue  not  only  to  hold  the  same  interest  in  them, 
but  likewise  to  have  the  right  to  enjoy  and  in  the  same 
manner  as  they  did  previously." 

In  the  case  of  Bush  vs.  McKeesport,  City,  166  Pa.  57, 
the  court  upheld  the  validity  of  the  following  clause: 
"No  person  shall  hereafter  be  entitled  to  recover  any 
damages  for  any  buildings  or  the  improvements  of  any 
kind  which  shall  or  may  be  placed  or  constructed  upon 
or  within  the  lines  of  any  located  street  or  alley,  after 
the  same  shall  have  been  located  or  ordered  by  counsel." 

But  the  New  York  court  has  since  come  to  a  different 
conclusion  in  the  case  of  Forster  vs.  Scott,  136  App. 
Div.  577,  and  the  Massachusetts  court  has  also  found 
against  the  constitutionality  of  such  a  provision.  In 
Forster  vs.  Scott,  the  plaintiff  had  given  a  deed  to  the 
defendant  warranting  against  incumbrances.  A  pro- 
posed street  was  located  on  the  plaintiff's  land.  The 
court  held  that  this  was  not  an  incumbrance  since 
the  act  of  1882,  chapter  419  was  unconstitutional 
in  providing  that  "  No  compensation  shall  be  allowed 
for  any  building,  erection  or  construction  which  at  any 
time,  subsequent  to  the  filing  of  the  maps,  plans,  etc., 
may  be  built  in  part  or  in  whole  upon  or  through  any 
street,  avenue,  road,  public  square,  or  place." 

"  Whenever  a  law  deprives  the  owner  of  the  benefi- 
cial use  and  free  enjoyment  of  his  property,  or  imposes 
restraints  upon  such  use  and  enjoyment  that  materially 
affect  its  value  without  legal  process  or  compensation 
it  deprives  him  of  his  property  within  the  meaning  of 
the  constitution." 

244 


LEGISLATION    AND   DECISIONS 

Edwards  vs.  Bruorton,  184  Mass.  529 
Knowlton,  C.  J. 

"This  is  an  action  for  breach  of  a  covenant  in  a  deed. 
A  public  street  called  Jersey  Street  was  laid  out  by 
the  street  commissioners  of  Boston  over  a  part  of  the 
premises  under  authority  of  statute  1891,  c.  323,  and 
the  existence  of  this  street  constitutes  a  breach  of  the 
covenant  in  the  deed  if  the  statute  gave  the  board 
authority  to  lay  it  out.  It  is  contended  that  the 
statute  is  unconstitutional  .  .  .  because  in  section 
9  it  provides  that  no  compensation  shall  be  given  for 
land  taken  for  a  street,  if  the  owner,  after  the  filing  of  a 
plan  in  accordance  with  the  statute,  shall  erect  any 
building  within  the  boundaries  of  any  way  and  not 
remove  it  when  required  by  the  street  commissioners." 

"  This  was  intended  to  prevent  any  use  of  property 
inconsistent  with  the  plan  after  the  filing  of  a  plan  and 
before  the  laying  out  of  a  way.  If  it  could  have  that 
effect,  it  might  materially  interfere  with  the  use  which 
an  owner  might  desire  to  make  of  his  estate  for  many 
years  after  the  filing  of  the  plan  and  before  the  laying 
out  of  a  way.  The  statute  provides  no  compensation  for 
this  interference  with  private  property.  The  legislation 
can  not  constitutionally  so  interfere  with  the  use  of  prop- 
erty without  giving  compensation  to  the  owner."  .    .   . 

"In  the  act  before  us,  there  is  no  express  prohibition 
of  the  owner's  use  of  his  property,  but  it  is  declared  that 
if  he  uses  it  otherwise  than  in  accordance  with  the  plans 
of  the  street  commissioners  it  may  be  taken  from  him 
for  a  way  without  giving  him  compensation.  This 
attempt  to  except  him  from  the  general  rule  in  regard 
to  the  taking  of  property  under  the  right  of  eminent 
domain  is  unconstitutional  and  ineffectual." 

245 


CARRYING   OUT   THE    CITY    PLAN 

The  court  then  finds  that  the  unconstitutional  parts  of 
the  statute  are  not  so  connected  with  the  rest  of  the 
statute  as  to  invaHdate  it,  and  that  the  street  laid  out 
under  the  provisions  of  the  statute  became  a  legally 
located  public  way,  and  that  its  existence  constituted 
a  breach  of  the  covenant  in  the  deed. 

D.  BILL-BOARDS 
Bill  board  decisions  may  be  thus  classified: 

I .  Where  the  ordinance  has  been  held  invalid  on  the 
ground  that  its  purpose  was  the  removal  of  the  bill- 
boards for  aesthetic  reasons  and  where  the  character 
of  the  bill-boards  as  nuisances  was  not  raised,  the  de- 
cisions are  uniformly  against  the  reasonableness  of  the 
ordinance. 

People  vs.  Green,  85  N.  Y.  App.  400. — The  ordinance 
prohibited  the  posting  of  any  advertisement  whatever 
upon  fences  enclosing  private  property  fronting  on  or 
adjacent  to  any  public  park.  There  was  no  claim  that 
the  posting  of  advertisements  in  any  such  places  was 
an  injury  to  the  morals,  health  or  safety  of  the  city. 
The  ruling  was  merely  against  the  extension  of  the 
police  power  for  aesthetic  purposes. 

Commonwealth  vs.  Boston  Advertising  Co.  188  Mass. 
348. — The  ordinance  prohibited  all  signs  so  near  a 
parkway  as  to  be  visible  to  the  naked  eye  and  was 
clearly  intended  to  accomplish  aesthetic  purposes. 

Vamey  vs.  Williams,  100  Pac.  Rep.  867. — The  or- 
dinance absolutely  prohibited  maintenance  and  erection 
of  all  bill-boards  for  advertising  purposes.  There  was 
no  attempt  to  restrict  its  operation  to  bill-boards  that 
were  insecure  or  otherwise  dangerous  or  to  advertising 
that  might  be  indecent.     "Bearing  in  mind  that  the 

246 


LEGISLATION    AND   DECISIONS 

ordinance  does  not  purport  to  have  any  relation  to  the 
protection  of  passers  by  from  injury  by  reason  of  unsafe 
structures,  to  the  diminution  of  hazard  of  fire,  or  to  the 
prevention  of  immoral  displays  we  find  that  the  one 
ground  upon  which  the  town  council  may  be  thought 
to  have  acted  is  that  the  appearance  of  bill-boards  is 
or  may  be  offensive  to  the  sight  of  persons  of  refined 
tastes."  The  promotion  of  aesthetic  or  artistic  con- 
sideration has  never  been  held  to  justify  an  exercise  of 
the  police  power. 

II.  Where  the  court  considers  the  ordinance  as  an 
attempt  to  protect  either  the  health,  safety  or  morals 
of  the  community  and  finds  that  it  is  an  unreasonable 
regulation. 

State  vs.  Whitlock,  149  N.  C.  542. — The  ordinance 
prohibited  the  erection  of  bill-boards  on  the  lot  line. 
The  court  found  that  this  was  an  invasion  of  private 
rights,  since  such  structures  might  be  built  with  abso- 
lute safety. 

Crawford  vs.  City  of  Topeka,  51  Kas.  761. — The 
court,  in  holding  the  ordinance  unreasonable,  said: 
"In  what  way  can  the  erection  of  a  safe  structure  for 
advertising  purposes  near  the  front  of  a  lot  endanger 
public  safety  any  more  than  a  like  structure  for  some 
other  lawful  purpose.  Perhaps  regulations  might  be 
made  with  reference  to  the  manner  of  construction  so 
as  to  insure  safety  but  the  absolute  prohibition  would 
be  an  unwarranted  invasion  of  private  rights.'*  The 
unreasonableness  of  the  ordinance  is  seen  when  it  is 
considered  that  the  posting  of  a  harmless  paper  upon 
a  structure  changes  it  from  a  lawful  to  an  unlawful  one. 
To  the  same  effect  are  the  following  cases:  Bryan  vs. 
City  of  Chester,  212  Pa.  St.  259;  Bill  Posting  Sign  Co., 

247 


CARRYING   OUT   THE    CITY    PLAN 

VS.  Atlantic  City,  71  N.  J.  Law,  72;  Chicago  vs. 
Gunning  System,  214  111.  628;  Passaic  vs.  Patterson 
Bill  Posting  Co.,  72  N.  J.  Law,  285. 

II.  PROCEDURE    IN    ACQUIRING    LAND    BY 
CONDEMNATION    AND    IN    ASSESSING 
BENEFITS 

1 

Amendment  to  Constitution  of  New  York,  Art. 

I,  Sec.  7.    Adopted  Nov.  4,  191 3 

When  private  property  shall  be  taken  for  any  public 
use,  the  compensation  to  be  made  therefor,  when  such 
compensation  is  not  made  by  the  State,  shall  be  as- 
certained by  a  jury,  by  the  supreme  court,  with  or  without 
a  jury  but  not  with  a  referee,  or  by  not  less  than  three 
commissioners,  appointed  by  a  court  of  record,  as  shall 
be  prescribed  by  law.  Private  roads  may  be  opened 
in  the  manner  to  be  prescribed  by  law;  but  in  every 
case  the  necessity  of  the  road  and  the  amount  of  all 
damage  to  be  sustained  by  the  opening  thereof  shall 
be  first  determined  by  a  jury  of  free-holders,  and  such 
amount,  together  with  the  expenses  of  the  proceed- 
ing, shall  be  paid  by  the  person  to  be  benefited.  Gen- 
eral laws  may  be  passed  permitting  the  owners  or 
occupants  of  agricultural  lands  to  construct  and  main- 
tain for  the  drainage  thereof,  necessary  drains,  ditches 
and  dykes  upon  the  lands  of  others,  under  proper 
restrictions  and  with  just  compensation,  but  no  special 
laws  shall  be  enacted  for  such  purposes. 

The  legislature  may  authorise  cities  to  take  more  land 
and  property  than  is  needed  for  actual  construction  in 
the  laying  out,  widening,  extending,  or  re-locating  parks, 

248  » 


LEGISLATION    AND    DECISIONS 

public  places,  highways  or  streets,  provided,  however, 
that  the  additional  land  and  property  so  authorised  to  be 
taken  shall  be  no  more  than  sufficient  to  form  suitable 
building  sites  abutting  on  such  park,  public  place,  high- 
way or  street.  After  so  much  of  the  land  and  property 
has  been  appropriated  for  such  park,  public  place,  high- 
way or  street  as  is  needed  therefor,  the  remainder  may  be 
sold  or  leased. 

Words  in  italics  are  new. 

2 
Acts  of  New  York,  191  i.     Chap.  679 

AN  ACT  to  amend  the  Greater  New  York  charter,  in  relation 
to  the  payment  of  the  cost  of  certain  public  improvements. 

The  People  of  the  State  of  New  York,  represented  in 
Senate  and  Assembly,  do  enact  as  follows: 

Section  i.  Chapter  six  of  the  Greater  New  York 
charter,  as  re-enacted  by  chapter  four  hundred  and 
sixty-six  of  the  laws  of  nineteen  hundred  and  one,  is 
hereby  amended  by  adding  thereto  a  new  section,  to  be 
known  as  section  two  hundred  and  forty-seven,  to  read 
as  follows : 

§  247.  Before  a  public  improvement  of  any  kind  (ex- 
cept an  improvement  to  be  made  pursuant  to  the  rapid 
transit  act)  involving  the  acquisition  or  the  physical 
improvement  of  property  for  streets,  public  places, 
parks,  bridges,  approaches  to  bridges,  for  the  disposal 
and  treatment  of  sewage  or  the  improvement  of  the 
waterfront,  or  involving  both  such  acquisition  and 
physical  improvement  of  property,  which  acquisition 
or  physical  improvement,  or  both,  is  estimated  to  cost 
the  sum  of  fifty  thousand  dollars  or  more,  shall  be 
authorized,  the  board  of  estimate  and  apportionment 
may  determine  in  what  manner  and  in  what  shares  and 

249 


CARRYING   OUT  THE    CITY    PLAN 

proportions  the  cost  and  expense  of  the  acquisition  or 
physical  improvement,  or  both,  shall  be  paid  by  the 
city  of  New  York,  by  one  or  more  boroughs  thereof, 
by  a  part  or  portion  of  one  or  more  boroughs  thereof, 
or  by  the  respective  owners,  lessees,  parties  and  persons 
respectively  entitled  unto  or  interested  in  the  lands, 
tenements,  hereditaments  and  premises  not  required 
for  the  said  improvement,  which  said  board  shall  deem 
peculiarly  benefited  thereby. 

If  said  board  shall  determine  that  the  cost  of  such 
acquisition  or  physical  improvement,  or  both,  shall  be 
apportioned  between  or  among  the  city  of  New  York, 
one  or  more  boroughs  thereof,  a  part  or  portion  of  one 
or  more  boroughs  thereof,  or  the  respective  owners, 
lessees,  parties  and  persons  respectively  entitled  unto  or 
interested  in  the  lands,  tenements,  hereditaments  and 
premises  not  required  for  the  said  improvement,  which 
said  board  shall  deem  peculiarly  benefited  thereby,  the 
said  board  may  also  determine  in  what  manner  and  in 
what  proportion  the  cost  and  expense  of  such  acquisi- 
tion or  physical  improvement,  or  both,  shall  be  borne 
either  by  the  city  of  New  York,  by  one  or  more  boroughs 
thereof,  by  a  part  or  portion  of  one  or  more  boroughs 
thereof,  or  by  the  respective  owners,  lessees,  parties  and 
persons  respectively  entitled  unto  or  interested  in  the 
lands,  tenements,  hereditaments  and  premises  not  re- 
quired for  the  said  improvement,  which  said  board 
shall  deem  peculiarly  benefited  thereby. 

3 
Kansas  City  vs.  Bacon  et  al.     157  Mo.  450 
VALLIANT,  J.     Appeal  from  a  judgment  of  the 
circuit   court   of    Jackson    county   assessing    benefits 

2$0 


LEGISLATION    AND    DECISIONS 

against  property  of  the  defendants  in  the  proceedings 
to  estabhsh  Penn  Valley  park  in  Kansas  City. 

For  the  establishing  of  the  park  134  acres  of  land 
were  condemned  and  the  total  amount  assessed  as  the 
value  thereof  to  be  paid  the  owners  was  $870,759.60, 
and  for  the  payment  of  that  amount  assessments  as  of 
benefits  were  made  on  a  large  number  of  lots  included 
in  what  is  known  as  West  Park  district,  among  which 
were  lots  owned  severally  by  defendants  Bacon  and 
Monroe.  The  assessments  on  the  lots  of  Mrs.  Bacon 
aggregated  J3, 2 52.49;  those  on  the  lots  of  Monroe, 
JP991.17.  The  amount  assessed  against  the  city  as 
general  benefits  was  $i. 

The  point  against  which  the  main  force  of  appel- 
lants' argument  is  directed  is  instruction  1 1  given  at 
the  request  of  the  city,  and  which  is: 

"11.  By  your  verdict  you  shall  show  a  correct  de- 
scription of  each  piece  or  parcel  of  property  taken  and 
the  value  thereof,  and  of  each  piece  or  parcel  of  private 
property  damaged  and  the  amount  of  injury  thereto. 
You  shall  also  show  by  your  verdict  the  amount,  if  any, 
assessed  against  the  city,  and  shall  show  the  amount 
of  benefits  assessed  against  each  piece  or  parcel  of 
private  property  found  benefited  within  the  benefit 
district. 

In  estimating  the  benefits  that  may  accrue  to  the 
city  and  to  the  public  generally,  or  to  any  property  in 
the  benefit  district  by  reason  of  the  proposed  improve- 
ment, you  shall  consider  only  such  benefits  as  are  direct, 
certain  and  proximate." 

The  law  contemplates  that  a  public  improvement 
251 


CARRYING   OUT  THE   CITY    PLAN 

may  bring  a  benefit  to  the  property  of  individuals 
separate  from  that  which  it  brings  to  the  city  in  general, 
and  that  it  may  bring  a  benefit  to  the  city  in  general 
separate  from  that  which  it  brings  to  the  property  of 
the  individuals,  and  that  when  it  comes  to  apportioning 
the  cost,  the  individuals  and  the  city  should  each  bear 
the  burden  in  proportion  to  the  respective  benefit,  but 
the  benefit  in  the  one  case  must  be  as  *' direct,  certain 
and  proximate"  as  in  the  other. 

G>nceding  all  that  the  learned  counsel  say  concerning 
the  difference  between  general  and  special  taxation, 
we  do  not  see  how  it  affects  the  question  relating  to  the 
character  of  the  benefits  the  city  is  required  to  pay  for 
in  a  case  like  this.  And  if  it  is  lawful  for  the  jury  to 
estimate  the  benefit  to  the  city  at  large  with  a  view  to 
charging  a  proper  share  of  the  cost  of  the  improvement 
to  the  city  and  thereby  to  that  extent  relieve  the 
burden  of  the  property  owners;  that  is  to  say,  if  that 
feature  of  the  law  which  contemplates  laying  a  portion 
of  the  burden  on  the  city  at  large  is  not  in  violation  of 
the  fourteenth  amendment  to  the  Constitution  of  the 
United  States,  then  there  must  be  some  rule  to  guide 
the  jury  in  assessing  those  benefits,  and  if  it  is  not 
proper  to  instruct  the  jury  that  the  only  benefits  to  the 
city  at  large  which  they  are  to  consider  are  such  "as 
are  direct,  certain  and  proximate,"  then  the  contrary 
is  true,  and  they  should  be  instructed  to  consider 
benefits  that  are  indirect,  uncertain  and  remote.  We 
recognize  that  the  task  of  assessing  benefits  either  to 
private  property  or  to  the  city  at  large  is  a  very  diffi- 
cult one,  and  that  the  temptation  to  the  jury  to  indulge 
in  conjecture  is  great,  but  still  they  ought  to  be  ad- 

252 


LEGISLATION    AND   DECISIONS 

monished  that  the  law  requires  them  to  use  their  reason 
and  judgment,  and  not  their  imagination.  The  pro- 
vision of  the  law  requiring  the  benefits  to  the  city  at 
large  to  be  estimated  by  the  jury  should  either  be 
eliminated  entirely  or  else  the  jury  should  be  instructed 
as  to  what  the  law  means  by  such  benefits,  and  if  it 
does  not  mean  such  "as  are  direct,  certain  and  proxi- 
mate, "  it  is  meaningless. 

The  specific  charge  of  inequality  before  the  law  that 
these  appellants  make  is  that  the  city  has  been  relieved 
of  its  just  proportion  of  the  cost  of  the  park,  and  that 
portion  has  been  laid,  together  with  their  own  burden, 
on  these  appellants.  In  their  brief  they  say  that  the 
jury  should  first  have  estimated  the  benefit  to  the  city 
at  large  and  should  have  charged  only  the  balance  of 
the  cost  as  benefits  against  the  private  property,  that 
the  assessment  of  one  dollar  against  the  city  was  no 
assessment  at  all. 

If  the  case  was  given  to  the  jury  under  proper  in- 
structions, whatever  opinion  we  may  have  as  to  the 
fact,  we  can  not  say  as  a  matter  of  law  that  an  assess- 
ment of  merely  nominal  benefit  was  unlawful. 

See  also  Kansas  City  vs.  Bacon  147  Mo.  259,  in  which 
this  language  is  found: 

"In  the  absence  of  misleading  instructions  or  evi- 
dence of  misconduct  a  verdict  of  one  dollar  against  the 
city  at  large  is  not  as  a  matter  of  law  ground  to  disturb 
a  verdict." 

In  this  case  there  was  an  assessment  on  property 
holders  of  jJ6oo,ooo,  and  of  $1.00  against  the  city. 

And: 

253 


CARRYING   OUT   THE   CITY    PLAN 

Kansas  City  vs.  Smart,  128  Mo.  272,  where  there 
was  an  assessment  of  $140,000  against  the  benefit 
district  and  $1.00  against  the  city. 


Park  Law  OF  Indianapolis.    Chap.  231.    Acts  of 
Indiana,  191 1 

AN  ACT  concerning  the  "department  of  public  parks"  in 
cities  of  the  first  and  second  classes,  defining  its  powers  and 
duties,  conferring  certain  powers  upon  the  common  council 
and  mayor  of  such  cities  in  relation  to  said  park  department, 
legalizing  appointments  of  boards  of  park  commissioners 
in  such  cities,  and  acts  done  by  such  boards,  repealing  con- 
flicting laws,  and  declaring  an  emergency. 

[S.  378.    Approved  March  6,  1911.] 

Section  i.  Cities — First  and  Second  Class — 
Department  of  Parks. 

Section  2.  Park  Commissioners — Terms. 

Section  3.  Organization — Reports — Meetings — 
Funds. 

Section  4.  Control  of  Parks  and  Boulevards — 
Powers. 

Section  5.  Letting  of  Contracts. 

Section  6.  Breach  of  Agreement — Suit — Rules 
— Taxation. 

Section  7.  Sale  of  Park  Lands — Park  Line — 
Amusement  Places. 

Section  8.  Bequests  of  Property — Use  and  Con- 
trol— Gardens,  Etc. 

Section  9.  Power  over  Waterways,  Etc. 

Section  10.  Condemnation — Eminent  Domain. 
The  said  board  of  park  commissioners  are  authorized 
to  exercise  the  power  of  eminent  domain  within  such 
city,  for  the  purpose  of  carrying  out  any  of  the  pro- 
visions of  this  act,  and  outside  of  such  city  within  five 

254 


LEGISLATION    AND    DECISIONS 

miles  of  the  limits  of  such  city.  And  in  case  such  board 
of  park  commissioners  cannot  agree  with  the  owners, 
lessees  or  occupants  of  any  real  estate  selected  by  them 
for  the  purposes  herein  set  forth,  they  may  proceed 
to  procure  the  condemnation  of  the  same  as  herein- 
after provided,  and  in  addition  thereto,  when  not  in 
conflict  nor  inconsistent  with  the  express  provisions  of 
this  act,  may  proceed  under  the  general  laws  of  the 
State  of  Indiana  governing  the  condemnation  of  the 
right  of  way  for  the  purposes  of  internal  improvement 
which  may  be  in  force  at  the  time,  and  the  provisions 
of  such  laws  are  hereby  extended  to  parks,  parkways, 
park  boulevards  and  pleasure  driveways,  or  parts  there- 
of, so  far  as  the  same  are  not  in  conflict  or  inconsistent 
with  the  terms  of  this  act. 

Section  ii.  Common  Council — Park  Districts. 
The  common  council  of  any  such  city  shall  have  power, 
by  ordinance  upon  and  in  accordance  with  the  recom- 
mendation of  the  board  of  park  commissioners,  to  lay 
off  and  divide  the  territory  thereof  into  any  number  of 
park  districts  that  the  conveniences  of  the  citizens  of 
such  city  and  of  administration  of  the  department  of 
public  parks  may  require;  and,  after  such  districts  are 
established,  may  from  time  to  time,  in  like  manner,  add 
new  territory  to  any  established  district,  or  create  new 
districts  from  territory  which  may  be  annexed  to  any 
such  city.  When  such  division  is  thus  made  of  the 
territory  of  any  such  city  into  districts,  or  when  altera- 
tions are  thus  made  in  the  districts,  the  boundaries 
thereof  shall  be  accurately  defined,  and  the  descrip- 
tions of  boundaries  shall  be  entered  by  such  board  at 
full  length  in  the  records  of  such  board  and  shall  be 
recorded  in  the  office  of  the  recorder  of  the  county  in 

255 


CARRYING   OUT   THE   CITY    PLAN 

which  such  city  is  situated;  and  a  duly  authenticated 
copy  thereof  shall  be  filed  with  the  comptroller  of  such 
city. 

Section  12.  Boulevard — Proceedings  to  Im- 
prove. The  board  of  park  commissioners  of  any  such 
city  shall  have  the  power  to  order  the  improvement  of 
any  boulevard  or  any  pleasure  driveway  or  part  thereof, 
under  the  control  of  such  board,  by  paving  the  same, 
curbing  and  constructing  sidewalks  thereon,  or  either 
paving,  curbing  and  constructing  sidewalks  thereon  in 
the  same  manner  and  subject  to  the  same  limitation  as 
to  form  and  procedure,  and  to  the  same  extent  as  is  or 
may  be  in  the  future  conferred  upon  the  board  of  pub- 
lic works  of  any  such  city  to  improve  any  street,  alley 
or  sidewalk  within  such  city;  the  cost  of  such  improve- 
ment of  such  boulevard  or  pleasure  driveway  shall 
become  a  lien  upon  property  to  the  same  extent,  en- 
forceable in  the  same  manner,  with  the  same  rights  as 
to  payments  by  installments  and  appeal  as  are  or  may 
be  provided  for  in  the  case  of  street  and  sidewalk  im- 
provements ordered  by  the  board  of  public  works;  and 
the  provisions  of  said  laws  applicable  to  street  and  side- 
walk improvements  ordered  by  the  board  of  public 
works  of  any  such  city  are  hereby  extended  to  the  im- 
provement of  any  such  boulevard,  or  pleasure  drive- 
way: Provided,  That  said  board  shall  have  exclusive 
authority  to  determine  the  kind  of  pavement  to  be  used. 
And  said  park  board  shall  have  the  power  to  change 
and  fix  the  grade  of  any  boulevard,  park  boulevard,  or 
public  driveway,  or  public  ground  under  its  control,  to 
the  same  extent  as  such  power  is  now  or  may  be  in  the 
future  conferred  upon  the  board  of  public  works  of  any 
such  city  to  change  and  fix  the  grade  of  any  street, 

256 


LEGISLATION    AND   DECISIONS 

alley  or  public  place  within  any  such  city:  Provided, 
That  whenever  the  land  along  one  side  of  a  boulevard 
or  pleasure  driveway  is  owned  by  the  city  or  used  by 
the  city  for  park  purposes,  one-half  the  cost  of  such 
improvement  may  be  assessed  against  the  property 
benefited  in  such  park  district,  or  districts,  to  the  ex- 
tent and  in  the  proportion  the  same  shall  be  benefited 
as  hereinafter  provided;  and  in  case  it  should  be  de- 
termined by  said  board  that  no  part  of  the  cost  of  such 
improvement  is  properly  assessable  against  the  property 
of  a  district,  or  districts,  in  which  the  improvement  is 
made,  the  same  may  be  paid  by  such  city  out  of  any 
funds  available  for  such  purposes. 

Section  13.  Appropriation  of  Property — Im- 
provements. The  board  of  park  commissioners  of 
such  cities  of  the  first  and  second  classes,  as  supple- 
mental to  other  powers  conferred  by  this  act,  shall 
have  the  power,  whenever  in  their  discretion  such 
course  is  advisable,  to  appropriate  property  in  the 
manner  hereinafter  provided  for  the  purpose  of:  (a) 
establishing  a  park,  parkway,  pleasure  driveway  or 
boulevard,  or  (b)  widening  or  extending  any  park,  park- 
way, pleasure  driveway  or  boulevard,  or  (c)  opening, 
widening,  or  extending  any  route  or  right  of  way  for  a 
sewer  or  channel  of  any  water  course  connected  with  or 
necessary  for  the  protection  of  any  park,  parkway, 
pleasure  driveway  or  boulevard,  or  (d)  constructing 
any  embankment  or  levee  along  such  water  course  for 
the  protection  of  any  such  park,  parkway,  pleasure 
driveway  or  boulevard,  or  (e)  constructing  any  bridge  or 
viaduct  upon  or  connected  with  any  such  park,  park- 
way, pleasure  driveway  or  boulevard,  or  (f)  converting 
any  street  or  alley  connecting  any  parks,  parkways  and 

18  257 


CARRYING  OUT  THE  CITY    PLAN 

boulevards  in  any  such  city  into  a  boulevard  or  pleasure 
driveway;  and  also  said  board  shall  have  power,  in 
the  same  proceedings,  to  provide  for  the  construction 
of  improvements  of  such  property  for  a  park,  parkway, 
pleasure  driveway  or  boulevard,  in  case  such  property 
is  appropriated  or  to  be  appropriated  for  such  purpose; 
or  to  provide  for  the  construction  necessary  for  the 
widening  or  extending  of  the  same,  in  case  such  be  the 
purpose  for  which  the  land  is  appropriated  or  to  be  ap- 
propriated; or  to  provide  for  the  construction  necessary 
for  the  opening,  widening  or  extending  of  any  such 
route  or  right  of  way  for  a  sewer  or  channel  of  any  such 
water  course,  in  case  such  property  is  appropriated  or 
to  be  appropriated  for  such  purpose;  or  to  provide  for 
the  construction  of  any  such  embankment  or  levee  along 
any  such  water  course  as  aforesaid,  in  case  such  prop- 
erty is  appropriated  or  to  be  appropriated  for  such  pur- 
pose; or  to  provide  for  the  construction  of  any  such 
bridge  or  viaduct,  in  case  such  be  the  purpose  for  which 
such  property  is  appropriated  or  to  be  appropriated; 
or  to  provide  for  the  converting  of  any  such  street  or 
alley  into  a  pleasure  driveway  or  boulevard,  in  case 
such  be  the  purpose  of  the  appropriation;  furthermore, 
such  board  may  provide  for  the  construction  of  any 
of  the  foregoing  work  or  improvements  when  the  prop- 
erty or  part  thereof  necessary  for  the  same  has  been 
secured  by  contract  or  otherwise  as  hereinafter  pro- 
vided. 

Section  14.  Proceedings  in  Appropriating  Prop- 
erty. Whenever,  as  provided  in  the  foregoing  sec- 
tion, said  board  shall  deem  it  advisable  to  appropriate 
property  and  in  conjunction  proceed  with  the  work  of 
construction,  or  to  appropriate  property,  or  to  proceed 

258 


LEGISLATION    AND   DECISIONS 

with  such  construction  when  the  property  necessary, 
or  part  thereof,  has  been  secured  by  contract  or  other- 
wise, it  shall  adopt  a  resolution  declaring  such  purpose, 
describing  the  lands  to  be  appropriated  or  used  therefor, 
and  such  other  lands  as  may  be  injuriously  or  beneficially 
affected  by  said  proceedings,  and  in  case  improvement 
of  [or]  construction  is  provided  for  in  said  resolution, 
shall  cause  proper  plans  and  specifications  and  an  es- 
timate of  the  cost  of  the  proposed  work  to  be  prepared 
by  its  engineer  selected  to  do  such  work,  which  shall  be 
open  to  inspection  by  all  persons  interested  in  or  affected 
by  the  appropriation  of  such  lands  and  the  construc- 
tion of  such  work,  and  cause  notice  of  the  passage  and 
purport  of  such  resolution  and,  in  case  of  improvement 
or  construction  is  provided  for  in  said  resolution,  of 
the  fact  that  such  plans  and  specifications  have  been 
prepared  and  can  thus  be  inspected,  to  be  published 
in  some  daily  newspaper  of  general  circulation  in  such 
city  once  each  week  for  two  consecutive  weeks.  Such 
notice  shall  name  a  time,  not  less  than  ten  days  after 
the  date  of  publication  at  which  such  board  shall  re- 
ceive or  hear  remonstrances  from  persons  interested 
in  or  affected  by  such  proceeding.  At  the  time  so  fixed 
therefor  said  board  shall  hear  remonstrances,  if  any  are 
presented,  and  after  considering  the  same,  take  final 
action,  confirming,  modifying  or  rescinding  their  orig- 
inal resolution.  Such  action  shall  be  final  and  con- 
clusive upon  all  persons.  In  said  resolution  and  notice 
separate  description  of  each  piece  or  parcel  of  property 
shall  not  be  required,  but  it  shall  be  sufficient  descrip- 
tion of  the  property  purchased,  or  to  be  purchased, 
appropriated  or  damaged  to  give  a  description  of  the  en- 
tire tract  by  metes  and  bounds,  whether  the  same  shall 

259 


CARRYING  OUT  THE  CITY   PLAN 

be  composed  of  one  or  more  pieces  or  parcels,  and 
whether  owned  by  one  or  more  person  or  persons; 
also,  it  shall  be  sufficient,  in  said  resolution  and  notice, 
to  prescribe  the  limits  within  which  private  property 
shall  be  deemed  benefited  by  the  proposed  improvement, 
which  benefit  districts  may  include  one  or  more  park 
districts,  part  or  parts  of  such  district  or  districts  and 
lands  benefited  outside  of  said  city:  Provided,  however, 
That  at  the  time  before  the  final  adoption  of  said  reso- 
lution the  resident  property-holders  in  any  benefit  dis- 
trict, as  thus  defined,  shall  have  the  right  to  remon- 
strate against  any  undertaking  by  said  park  board,  the 
cost  of  which  may  in  whole  or  in  part  be  assessed  against 
their  property.  In  the  event  that  a  majority  of  such 
resident  property-holders  shall  remonstrate  in  writing 
before  the  date  set  for  such  final  adoption  of  such  reso- 
lution, no  assessment  shall  be  made  in  such  district 
for  such  purpose  for  a  period  of  one  year  thereafter 
and  then  only  upon  a  new  resolution  duly  adopted. 

Section  15.     Improvement  Bids — Deposit. 

Section  16.  List  of  Property — Damages — Bene- 
fits. Upon  such  final  order  being  made,  as  above  pro- 
vided, said  board  shall  cause  to  be  prepared  a  list  or 
roll  of  all  the  owners  or  holders  of  property  sought  to 
be  taken,  if  any,  or  which  will  be  either  injuriously  or 
beneficially  affected  by  the  appropriation  of  such  land 
and  the  construction  of  such  work,  or  by  either  such 
appropriation  or  construction.  Such  list  shall  not  be 
confined  to  the  owners  of  property  adjacent  to  the  line 
of  the  proposed  work,  but  shall  extend  to  and  include 
all  property  taken  or  injuriously  affected  thereby,  and 
also  shall  include  all  lands  benefited  by  the  location, 
establishment,  construction  or  improvement  of  any 

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LEGISLATION    AND   DECISIONS 

such  park,  parkway,  pleasure  driveway,  boulevard, 
improvement  or  structure  provided  for  in  the  foregoing 
sections,  whether  within  or  without  the  limits  of  said 
city,  not  more  than  five  miles  from  the  limits  thereof. 
In  addition  to  such  list  of  names,  the  same  shall  show 
with  reasonable  certainty  a  description  of  such  proper- 
ties to  be  appropriated  or  affected,  either  injuriously  or 
beneficially,  belonging  to  such  persons,  and  no  greater 
certainty  in  names  and  descriptions  shall  be  necessary 
to  the  validity  of  any  assessment  than  is  required  in  the 
assessment  of  taxes. 

Section  17.  Assessment — Damages — Benefits. 
Upon  the  coming  in  of  such  list  such  board  shall 
proceed  to  consider,  determine  and  award,  first,  the 
amount  of  damages  sustained  by  the  owners  of  the 
several  parcels  of  land  required  to  be  taken  and  appro- 
priated, if  any,  as  is  provided  for  in  the  above  sections 
of  this  act,  or  which  will  be  injuriously  affected  thereby; 
second,  to  consider,  determine  and  assess  the  amount 
of  benefits  accruing  to  the  several  tracts  or  parcels  of 
property  benefited  by  reason  of  the  location,  establish- 
ment and  construction  of  any  such  park,  parkway, 
pleasure  driveway,  boulevard,  or  other  work  or  im- 
provement provided  for  in  the  above  sections  of  this 
act.  No  assessments  of  benefits  shall  be  made  in  ex- 
cess of  fifteen  per  cent  of  the  value  of  the  land  so  as- 
sessed exclusive  of  the  improvement  upon  the  land  so 
assessed;  and  the  total  of  such  assessment  against  any 
part  or  parcel  of  land  assessed,  during  the  ten  year 
period  of  existence  of  powers  herein  conferred  shall  not 
exceed  fifteen  per  cent  of  the  value  of  the  land  so  as- 
sessed. The  damages  awarded  and  the  benefits  as- 
sessed shall  be  severally  shown  as  against  each  parcel 

261 


CARRYING  OUT  THE  CITY   PLAN 

of  land  shown  on  said  list:  Provided,  That  the  board  of 
park  commissioners  of  any  such  city  shall  in  any  event 
direct  the  payment  of  the  cost  of  any  park,  parkway, 
pleasure  driveway,  boulevard  or  construction  of  any 
improvement  provided  for  in  the  above  sections  of  this 
act,  over  and  above  the  total  amount  of  all  assessments 
of  benefits,  or  to  the  extent  of  the  benefits  to  the  city 
as  a  whole,  as  determined  by  said  board,  to  be  made 
out  of  the  general  park  fund  of  any  such  city  available 
for  such  purpose:  Provided  further,  That  in  the  event 
the  total  cost  of  any  such  park  improvement,  including 
cost  of  lands,  construction,  shaping  of  soil,  planting  of 
trees  and  shrubbery  and  other  work  and  improvements 
called  for  in  such  resolution,  and  including  costs  of  mak- 
ing assessments  and  collections,  should  exceed  the  total 
of  benefits  to  such  lands  assessed  plus  the  amount  avail- 
able from  the  general  park  fund  or  other  sources  for 
any  such  park  improvement,  then  said  board  shall  pro- 
ceed no  further  under  said  resolution,  but  shall  rescind 
all  action  therefrom  taken.  In  case  said  board  shall 
have  ordered  the  cost  of  the  construction  of  pavements, 
curbing  and  gutters,  separately,  under  the  provisions 
of  section  12  hereof,  to  be  paid  by  abutting  property 
owners,  as  in  said  section  provided,  and  it  shall  appear 
that  the  entire  cost  of  the  same  can  not  be  met  by  as- 
sessments against  abutting  property  owners,  not  in- 
cluding such  city,  then  such  board  shall  have  power  to 
assess  the  remainder  of  the  cost  of  such  pavement,  curb- 
ing and  sidewalks  against  the  lands  of  the  district  or 
districts  wherein  such  proposed  improvement  is  situate 
to  the  extent  and  in  the  proportion  that  the  same  shall 
be  benefited,  in  the  manner  as  provided  for  assessing 
the  cost  of  other  structures  and  improvements  named  in 

262 


LEGISLATION    AND   DECISIONS 

sections  13  and  14  of  this  act:  Provided,  That  the  reso- 
lution of  such  board  shall  in  each  instance  state  the 
method  of  proposed  assessment  to  be  adopted. 

When  said  list  shall  have  been  thus  completed  said 
board  shall  cause  to  be  published  in  some  daily  news- 
paper of  general  circulation  in  said  city,  once  each  week 
for  two  successive  weeks,  a  notice  describing  the  loca- 
tion of  the  lands  appropriated,  if  any,  or  of  the  lands  on 
which  such  improvement  is  to  be  made,  and  the  gen- 
eral character  of  the  improvement  and  the  boundaries 
of  the  area  or  district  to  be  assessed;  said  notice  shall 
also  state  that  the  assessment  roll,  with  the  names  of 
the  owners  in  favor  of  whom  damages  have  been  awarded 
and  against  whom  assessments  have  been  made,  and 
descriptions  of  property  affected,  with  the  amounts  of 
preliminary  assessments  or  awards  as  to  each  piece  or 
parcel  of  property  affected,  is  on  file  and  can  be  seen 
in  the  office  of  said  board.  Said  notice  shall  also  name 
a  day  not  earlier  than  ten  days  after  the  date  of  the  last 
publication  on  which  said  board  shall  receive  and  hear 
remonstrances  from  persons  with  regard  to  the  amount 
of  their  respective  awards  or  assessments.  Further- 
more, said  board  shall  cause  a  written  notice  to  be 
served  upon  the  owner  of  each  piece  or  parcel  taken  or 
injuriously  affected,  showing  separately  each  item  of 
such  determination  as  to  lands  or  parts  of  lands  so 
owned  by  him,  by  leaving  a  copy  at  his  last  and  usual 
place  of  residence  in  such  city,  or  by  delivering  a  copy 
to  such  owner  personally;  and  said  board  shall  also 
cause  to  be  mailed  by  United  States  mail  a  notice  to  the 
place  of  residence,  if  known,  of  persons  owning  lands 
or  parts  of  lands  against  which  special  assessments  have 
been  made,  showing  each  item  of  such  determination 

263 


CARRYING  OUT  THE   CITY    PLAN 

as  to  such  persons.  In  case  any  person  affected  be  a 
non-resident,  or  his  residence  shall  be  unknown,  then 
he  shall  be  notified  by  publication  in  some  daily  news- 
paper of  general  circulation  once  each  week  for  three 
successive  weeks.  Said  notices  shall  name  a  day  not 
earlier  than  ten  days  after  service  of  such  notice,  or 
after  the  last  date  of  publication,  or  after  the  date  of 
mailing  as  above  provided,  on  which  said  board  shall 
receive  and  hear  remonstrances  from  persons  with  re- 
gard to  the  amount  of  their  respective  awards  or  assess- 
ments. Persons  not  included  in  such  lists  of  assess- 
ments or  awards  and  claiming  to  be  entitled  to  the 
same  shall  be  deemed  to  have  been  notified  of  the  pen- 
dency of  the  proceeding  by  the  original  notice  of  the  reso- 
lution of  the  board  and  by  the  first  publication  as  in 
this  section  provided. 

Section  i8.  Property  of  Insane  or  Infants. 

Section  19.  Remonstrance  Hearing.  Any  per- 
son notified  or  deemed  to  be  notified  under  the  preced- 
ing sections  may  appear  before  such  board  on  the  day 
fixed  for  hearing  such  remonstrances  with  regard  to 
awards  and  assessments,  and  remonstrate  against  the 
same.  All  persons  appearing  before  said  board  having 
an  interest  in  said  proceedings  shall  be  given  a  hearing. 
After  such  remonstrances  shall  have  been  received  and 
said  hearings  had,  said  board  shall  thereupon  either 
sustain  or  modify,  by  increasing  or  decreasing  the 
awards  or  assessments.  Any  person  thus  remonstrat- 
ing, who  is  aggrieved  by  the  decision  of  the  board, 
may,  within  fifteen  days  thereafter,  take  an  appeal  to 
the  circuit  or  superior  court  in  the  county  in  which 
such  city  is  located.  Such  appeal  shall  only  affect 
the  amount  of  the  assessment  or  award  of  the  person 
appealing. 

264 


LEGISLATION    AND   DECISIONS 

Section  20.  Appeal.  Such  appeal  may  be  taken 
by  filing  an  original  complaint  in  such  court  against 
such  city  within  the  time  named,  setting  forth  the 
action  of  such  board  in  respect  to  such  assessment  or 
award  and  stating  the  facts  relied  upon  as  showing  an 
error  on  the  part  of  such  board.  Such  court  shall  re- 
hear the  matter  of  such  assessment  or  award  de  novo, 
and  confirm,  lower  or  increase  the  same,  as  may  seem 
just.  In  case  such  court  shall  reduce  the  amount  of 
benefit  assessed  against  the  land  of  such  property- 
holder  ten  per  cent,  of  the  assessment  by  said  board,  or 
increase  the  amount  of  damages  awarded  in  his  favor 
ten  per  cent,  of  the  amount  awarded  by  such  board,  the 
plaintiff  in  such  suit  shall  recover  costs,  otherwise  not. 
The  amount  of  the  judgment  in  such  court  shall  be 
final,  and  no  appeal  shall  lie  therefrom. 

Section  21.  Local  Assessment  Duplicate — Liens. 

Section  22.  Payment  of  Damages — Tender. 

Section  23.  Payment  to  Owners — Title  to 
Lands. 

Section  24.  Recording  Land  Descriptions. 

Section  2$.  Appointments  Valid. 

Section  26.  Ten-Year  Limit — ^Assessment.  The 
power  herein  granted  for  the  assessments  of  benefits 
shall  expire  ten  years  from  the  date  at  which  this  act 
shall  take  effect:  Provided,  That  after  the  expiration  of 
said  ten  year  period,  said  board  of  park  commissioners 
shall  have  and  exercise  powers  therein  granted  in  re- 
spect to  the  opening  and  improvement  of  streets,  ways 
and  boulevards,  of  which  they  have  control,  similar  to 
powers  of  the  board  of  public  works  of  such  cities  in  re- 
spect to  streets  and  highways. 

Section    27.  Aggregate    Benefits.    The    powers 

265 


CARRYING   OUT  THE    CITY    PLAN 

herein  granted  for  the  assessment  of  benefits  against 
property,  except  as  to  powers  similar  to  those  of  the 
board  of  pubHc  works  of  such  cities,  are  hereby  further 
Hmited  as  follows:  The  aggregate  amount  of  benefits 
which  may  be  assessed  against  property  by  such  park 
board  in  cities  of  the  first  class  during  said  ten  year 
period,  from  and  after  the  taking  effect  of  this  act, 
shall  not  exceed  one  million,  two  hundred  and  fifty 
thousand  dollars.  The  total  amount  of  such  local  bene- 
fits which  may  be  assessed  by  such  board  ot  park  com- 
missioners in  cities  of  the  first  class  during  any  one  year 
after  the  taking  effect  of  this  act,  shall  not  exceed  two 
hundred  thousand  dollars.  The  aggregate  amount  of 
benefits  which  may  be  assessed  against  property  by 
such  board  of  park  commissioners  in  cities  of  the  second 
class  during  said  ten  year  period,  from  and  after  the 
taking  effect  of  this  act,  shall  not  exceed  five  hundred 
thousand  dollars.  The  total  amount  of  such  local 
benefits  which  may  be  assessed  by  any  such  board  of 
park  commissioners  in  cities  of  the  second  class  during 
any  one  year  after  the  taking  effect  of  this  act  shall  not 
exceed  fifty  thousand  dollars:  Provided,  That  if  in  any 
one  year  such  board  of  park  commissioners  in  any  city 
of  the  first  or  second  class  should  assess  an  amount  less 
than  the  annual  limitation  herein  contained,  then  and 
in  that  event  any  such  board  may,  in  the  following 
or  any  subsequent  year,  make  such  assessments  in  ex- 
cess of  said  annual  limitation  to  the  amount  of  such 
difference  between  such  annual  limitation  and  the 
amount  assessed  in  any  previous  year.  The  limits 
herein  fixed  shall  not  be  deemed  to  apply  to  any  sum 
which  may  be  raised  from  a  general  tax  levy,  and  ap- 
propriated by  the  council  of  such  city  for  the  use  of  such 

266 


LEGISLATION    AND   DECISIONS 

park  board,  or  received  from  any  source  other  than 
through  benefit  assessments,  but  the  Hmiting  amounts 
herein  named  shall  apply  only  to  such  benefit  assess- 
ments, not  including  those  ordered  by  powers  similar 
to  those  of  the  board  of  public  works. 

Section  28.  Repeal. 

Section  29.  Emergency. 


Acts  of  Massachusetts,  1912.    Chap.  339 

AN  ACT  to  authorize  the  City  of  Boston  to  abate  a  portion 
of  the  betterment  assessments  made  on  account  of  the 
laying  out  and  construction  of  Columbia  Road. 

Section  i .  The  board  of  street  commissioners  of  the 
city  of  Boston  may  at  any  time  within  two  years  after 
the  passage  of  this  act  abate  such  proportion  of  any 
assessment  for  a  betterment  made  on  account  of  the 
laying  out  and  construction  of  Columbia  Road  from 
Franklin  Park,  in  Dorchester,  to  Marine  Park,  in  South 
Boston,  not  exceeding  in  the  case  of  lots  unimproved  at 
the  time  of  the  passage  of  the  order  for  the  said  laying 
out  and  construction  twenty  per  cent,  and  in  the  case 
of  lots  improved  at  the  time  of  the  passage  of  said 
order  and  lots  bordering  on  the  parts  of  the  said  road 
formerly  known  as  the  Strandway  and  Dorchesterway 
thirty-three  and  one-third  per  cent,  as  said  board  shall 
deem  just  and  expedient. 

Section  2.  Said  board  may  by  its  certificate  au- 
thorize the  treasurer  of  the  city  to  repay  the  excess  of 
any  amount  paid  on  account  of  said  assessments  over 
the  amounts  determined  as  the  revised  assessments  in 
accordance  with  the  provisions  of  this  act,  and  said 
excess  shall  be  repaid  by  the  treasurer  from  the  appro- 

267 


CARRYING   OUT   THE    CITY    PLAN 

priation  from  which  the  improvement  was  paid  for  to 
the  person  for  whom  payment  was  made,  or  to  his 
legal  representatives. 


Acts  OF  Massachusetts,  19 12.    Chap.  537 

AN  ACT  to  provide  for  reducing  the  betterments  charged 
for  the  improvement  of  Bennington  Boulevard  in  East 
Boston. 

Section  i.  The  city  of  Boston  is  hereby  required  to 
reduce  the  betterments  charged  for  the  improvement 
of  Bennington  Boulevard  in  the  East  Boston  district 
of  the  said  city  in  such  manner  and  to  such  extent  as 
shall  be  agreed  upon  by  the  city  and  the  owners  of  the 
lands  concerned.  In  case  of  their  failure  to  agree,  the 
amount  of  the  reduction  to  be  made  under  the  provi- 
sions of  this  act  shall  be  determined  by  the  superior 
court  for  the  county  of  Suffolk,  if  a  petition  therefor 
is  filed  in  the  office  of  the  clerk  of  the  court  by  the 
owners  of  the  land  within  two  years  after  the  passage 
of  this  act.  The  case  shall  be  heard  by  a  single  judge, 
if  the  parties  so  agree,  or  by  a  jury  if  either  party  re- 
quests a  trial  by  jury;  and  the  jury  shall  view  the 
premises  if  either  party  so  requests. 

III.     EXCESS  CONDEMNATION 
1 
Acts  of  Ohio,  1904.     Found  in  the  Annotated  Statutes 
C.  2,  P.  755 
All  municipal  corporations  shall  have  power  to  ap- 
propriate, enter  upon  and  hold,  real  estate  within  their 
corporate  limits  for  the  following  purposes:     .... 
12th:   For  establishing  esplanades,  boulevards,  park- 

268 


LEGISLATION    AND    DECISIONS 

ways,  park  grounds,  and  public  reservations  in,  around 
and  leading  to  public  buildings,  and  for  the  purpose  of 
reselling  such  land  with  reservations  in  the  deeds  of 
such  resale  as  to  the  future  use  of  said  lands  so  as  to 
protect  public  buildings  and  their  environs,  and  to 
preserve  the  view,  appearance,  light,  air,  and  use- 
fulness of  public  grounds  occupied  by  public  buildings 
and  esplanades,  and  parkways  leading  thereto. 


Laws  of  Maryland,  1908.  Chap.  166 
Condemnation  of  Property.  Baltimore 
To  acquire  by  purchase  or  condemnation  any  land 
or  any  interest  therein  which  it  may  require  for  school- 
houses,  engine-houses,  court-houses,  markets,  streets, 
bridges  and  their  approaches,  the  establishment  or  en- 
largement of  parks,  squares,  gardens  or  other  public 
places,  the  establishment  of  esplanades,  boulevards, 
parkways,  park  grounds  or  public  reservations  around, 
adjacent,  opposite  or  in  proximity  or  leading  to  any 
public  building  or  buildings,  or  which  it  may  require 
for  any  other  public  or  municipal  purpose;  and  also 
any  and  all  land  and  property  or  interest  in  land  and 
property  adjoining  and  extending  such  distance  as  may 
be  adjudged  necessary  from  any  property  in  use  or 
about  to  be  acquired  for  such  esplanade,  boulevard, 
parkway,  park  grounds  or  public  reservation,  as  afore- 
said, the  use  of  which  said  adjacent  property  it  may  be 
deemed  necessary  or  beneficial  to  subject  to  lawful 
restrictions  or  control,  in  order  to  better  protect  or 
enhance  the  usefulness  of  such  public  building  or  build- 
ings or  in  any  manner  to  promote  the  interests  of  the 
public  therein,  or  to  more  fully  effectuate  the  pur- 
pose of  the  establishment  of  such  esplanade,  boulevard, 

269 


CARRYING   OUT   THE   CITY    PLAN 

parkway,  park  grounds  or  public  reservations,  and  to 
sell  thereafter  such  adjacent  lands  or  property  subject 
to  such  reservations  or  restrictions  as  to  the  subsequent 
use  thereof,  as  may  appear  advisable  for  the  protection 
of  such  public  building  or  buildings,  or  for  enhancing 
the  usefulness  thereof,  or  in  any  manner  to  promote 
the  interests  of  the  public  therein,  or  for  better  insuring 
the  protection  or  usefulness  of  such  esplanade,  boule- 
vard, parkway,  park  grounds  or  public  reservations, 
or  in  any  manner  to  better  accomplish  the  purposes 
and  serve  the  public  interests  for  which  they  shall  have 
been  or  shall  be  established.  The  Mayor  and  City 
Council  of  Baltimore  may  prescribe  the  procedure  for 
condemnation  of  any  land  or  property  situated  wholly 
within  the  City  of  Baltimore,  which  under  the  fore- 
going provisions  it  is  authorized  to  condemn,  but  such 
procedure  as  the  said  Mayor  and  City  Council  of 
Baltimore  may  adopt  shall  include  provision  for  reason- 
able notice  to  the  owner  or  owners,  and  for  appeals 
to  the  Baltimore  City  Court  by  any  person  interested, 
including  the  Mayor  and  City  Council  of  Baltimore 
from  the  decision  of  any  commissioners  or  other  persons 
appointed  to  value  such  land  or  property,  or  interest 
therein.  Nothing  herein  shall  be  construed  as  depriv- 
ing the  city  of  any  power  of  condemnation  for  any 
purpose  already  vested  in  it.  The  Mayor  and  City 
Council  of  Baltimore  shall  have  full  power  and  author- 
ity to  provide  by  ordinance  for  ascertaining  whether 
any  and  what  amount  of  benefits  will  accrue  to  the 
owner  or  possessor  of  any  ground  or  improvements 
within  the  City  of  Baltimore  by  reason  of  the  estab- 
lishment or  enlargement  of  any  park,  squares,  gar- 
dens, esplanades,  boulevards,  parkways,  park  grounds, 

270 


LEGISLATION    AND    DECISIONS 

public  reservations  or  other  public  places,  for  which 
said  owner  or  possessor  ought  to  pay  compensation, 
and  to  provide  by  ordinance  for  assessing  or  levying 
the  amount  of  such  benefits  on  the  property  of  persons 
so  benefited;  provided,  that  provision  is  made  therein 
for  reasonable  notice  to  the  person  or  persons  against 
whom  such  benefits  are  to  be  assessed,  and  provided 
that  provision  be  made  for  appeals  to  the  Baltimore 
City  Court  by  any  person  or  persons  interested,  in- 
cluding the  Mayor  and  City  Council  of  Baltimore, 
from  the  decision  of  any  board,  commissioners,  or  other 
persons  appointed  or  authorized  to  assess  such  benefits. 


Virginia  Acts  OF  Assembly,  1906.    Chap.  194 

Approved  March  14,  1906 
I .  Be  it  enacted  by  the  general  assembly  of  Virginia, 
That  any  city  or  town  of  this  Commonwealth  may 
acquire  by  purchase,  gift  or  condemnation  property 
adjoining  its  parks  or  plats  on  which  its  monuments 
are  located,  or  other  property  used  for  public  purposes 
or  in  the  vicinity  of  such  parks,  plats  or  property  which 
is  used  and  maintained  in  such  a  manner  as  to  impair 
the  beauty,  usefulness  or  efficiency  of  such  parks,  plats 
or  public  property,  and  may  likewise  acquire  property 
adjacent  to  any  street  the  topography  of  which,  from 
its  proximity  thereof,  impairs  the  convenient  use  of 
such  street,  or  renders  impracticable,  without  extra- 
ordinary expense,  the  improvements  of  the  same,  and 
the  city  or  town  so  acquiring  any  such  property  may 
subsequently  dispose  of  the  property  so  acquired,  mak- 
ing limitations  as  to  the  use  thereof,  which  will  pro- 
tect the  beauty,  usefulness,  efficiency  or  convenience  of 
such  parks,  plats  or  property. 

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CARRYING   OUT   THE   CITY    PLAN 

2.  This  act  shall  be  in  force  on  and  after  ninety  days 
from  the  adjournment  of  the  general  assembly  of 
Virginia. 


Acts  of  Pennsylvania,  8  June,  1907.    No.  315 

AN  ACT  authorizing  cities  of  this  Commonwealth  to  pur- 
chase, acquire,  take,  use,  and  appropriate  private  property, 
for  the  purposes  of  making,  enlarging,  extending,  and  main- 
taining public  parks,  parkways,  and  playgrounds;  authoriz- 
ing the  said  cities  to  purchase,  acquire,  take,  use,  and  ap- 
propriate neighboring  private  property,  within  two  hun- 
dred feet  of  the  boundary  lines  of  such  public  parks,  park- 
ways and  playgrounds,  in  order  to  protect  the  same  by 
resale,  with  restrictions;  authorizing  the  resale  of  such 
neighboring  property,  with  such  restrictions  in  the  deeds 
of  resale  in  regard  to  the  use  thereof  as  will  protect  such 
public  park,  parkways,  and  playgrounds;  and  providing 
for  the  manner  of  ascertaining,  determining,  awarding,  and 
paying  compensation  and  damages  in  all  cases  where  prop- 
erty is  taken,  used,  and  appropriated  for  the  said  purposes. 

Section  i .  Be  it  enacted  &c.,  That  it  shall  be  lawful 
for,  and  the  right  is  hereby  conferred  upon,  the  cities 
of  this  Commonwealth  to  purchase,  acquire,  enter  upon, 
take,  use,  and  appropriate  private  property,  for  the 
purpose  of  making,  enlarging,  extending,  and  main- 
taining public  parks,  parkways,  and  play  grounds 
within  the  corporate  limits  of  such  cities,  whenever  the 
councils  thereof  shall,  by  ordinance  or  joint  resolution, 
determine  thereon;  That  where  such  private  property 
is  outside  of  the  city,  it  may  be  annexed  thereto  by 
ordinance  of  said  city:  And  provided.  That  where 
any  poorhouse  properties  are  taken,  and  such  cities 
shall  have  made  adequate  provisions  for  thereafter 
accommodating  and  supporting  the  poor  of  the  dis- 
tricts, wards,  and  townships  within  such  cities,  wherein 

272 


LEGISLATION    AND    DECISIONS 

such  poorhouses  are  located,  nominal  damages  only 
shall  be  allowed  for  such  taking,  and  the  land  shall  be 
held  on  condition  that  such  city  shall  continue  to  make 
adequate  provisions  for  the  poor  of  such  districts, 
wards  or  townships. 

Section  2.  It  shall  be  lawful  for,  and  the  right  is 
hereby  conferred  upon,  cities  of  this  Commonwealth 
to  purchase,  acquire,  enter  upon,  take,  use,  and  appro- 
priate neighboring  private  property,  within  two  hun- 
dred feet  of  the  boundary  lines  of  such  property  so 
taken,  used,  and  appropriated  for  public  parks,  park- 
ways, and  playgrounds,  in  order  to  protect  the  same 
by  the  resale  of  such  neighboring  property  with  re- 
strictions, whenever  the  councils  thereof  shall,  by 
ordinance  or  joint  resolution,  determine  thereon: 
Provided,  That  in  the  said  ordinance  or  joint  resolution, 
the  councils  thereof  shall  declare  that  the  control  of 
such  neighboring  property,  within  two  hundred  feet 
of  the  boundary  lines  of  such  public  parks,  parkways, 
or  playgrounds,  is  reasonably  necessary,  in  order  to 
protect  such  public  parks,  parkways,  or  playgrounds, 
their  environs,  the  preservation  of  the  view,  appearance, 
light,  air,  health,  or  usefulness  thereof. 

Section  3.  That  it  shall  be  lawful  for,  and  the  right 
is  hereby  conferred  upon,  the  cities  of  this  Common- 
wealth to  resell  such  neighboring  property,  with  such 
restrictions  in  the  deeds  of  resale  in  regard  to  the  use 
thereof  as  will  fully  insure  the  protection  of  such  public 
parks,  parkways,  and  playgrounds,  their  environs,  the 
preservation  of  the  view,  appearance,  light,  air,  health 
and  usefulness  thereof,  whenever  the  councils  thereof 
shall,  by  ordinance  or  joint  resolution,  determine 
thereon. 

19  27) 


CARRYING   OUT  THE   CITY    PLAN 

Section  4.  The  taking,  using,  and  appropriating,  by 
the  right  of  eminent  domain  as  herein  provided,  of 
private  property  for  the  purpose  of  making,  enlarging, 
extending,  and  maintaining  pubhc  parks,  parkways, 
and  playgrounds,  and  of  neighboring  property,  within 
two  hundred  feet  of  the  boundary  lines  of  such  public 
parks,  parkways,  and  playgrounds,  in  order  to  protect 
such  public  parks,  parkways,  and  playgrounds,  their 
environs,  the  preservation  of  the  view,  appearance, 
light,  air,  health,  and  usefulness  thereof,  by  reselling 
such  neighboring  property,  with  such  restrictions  in 
the  deeds  of  resale  as  will  protect  said  property,  so 
taken  for  the  aforesaid  purpose,  is  hereby  declared  to 
be  taking,  using,  and  appropriating  of  such  private 
property  for  public  use:  Provided,  however,  That  the 
proceeds  arising  from  the  resale  of  any  such  property 
so  taken,  shall  be  deposited  in  the  treasury  of  said 
cities,  and  be  subject  to  general  appropriation  by  the 
councils  of  said  city. 

Section  5.  In  all  cases  wherein  cities  of  this  Com- 
monwealth shall  hereafter  take,  use,  and  appropriate 
private  property  for  the  aforesaid  purposes,  by  or- 
dinance or  joint  resolution,  'if  the  compensation  and 
damages  arising  therefrom  cannot  be  agreed  upon  by 
the  owners  thereof  and  such  cities,  such  compensation 
and  damages  shall  be  considered,  ascertained,  deter- 
mined, awarded,  and  paid  in  the  manner  provided  in 
an  act  entitled  "An  act  providing  for  the  manner  of 
ascertaining,  determining,  awarding,  and  paying  com- 
pensation and  damages  in  all  cases  where  municipalities 
of  this  Commonwealth  may  hereafter  be  authorized  by 
law  to  take,  use,  and  appropriate  private  property  for 
the  purpose  of  making,   enlarging,   and   maintaining 

274 


LEGISLATION    AND    DECISIONS 

public  parks,  within  the  corporate  Hmits  of  such  muni- 
cipality/' approved  the  eighth  day  of  June,  Anno 
Domini  one  thousand  eight  hundred  and  ninety-five. 

Section  6.  All  acts  or  parts  of  acts  inconsistent  here- 
with are  hereby  repealed. 

Approved  the  eighth  day  of  June,  A.D.  1907. 

Edwin  S.  Stuart. 

5 
Pennsylvania  Mutual  Life  Ins.  Co.  vs. 
Philadelphia 
Pa.  Supreme  Court.    April  15,  1913. 

Bill  in  equity  for  an  injunction  to  restrain  the  city 
of  Philadelphia  from  appropriating  certain  land  under 
the  provisions  of  the  Act  of  June  8,  1907  (text  is  given 
on  page  272),  and  that  the  ordinance  of  Jan.  16,  191 3, 
be  declared  unconstitutional. 

From  the  record  it  appeared  that  by  ordinance, 
councils  of  Philadelphia  undertook  to  appropriate  cer- 
tain land  within  200  feet  of  a  proposed  parkway. 

By  ordinance  of  Jan.  16,  191 3,  the  mayor  was  author- 
ized to  enter  into  an  agreement  on  behalf  of  the  city 
with  the  Bell  Telephone  Co.,  whereby  the  land  so 
appropriated  should  be  conveyed  to  the  telephone  com- 
pany in  fee,  subject  to  certain  building  restrictions. 
The  purpose  of  the  transaction  was  admittedly  to 
protect  the  parkway  from  the  construction  of  an  un- 
sightly building  in  the  vicinity. 

The  lower  court  held  the  act  constitutional  but 
awarded  the  injunction  on  the  ground  that  the  ordi- 
nance of  Jan.  16,  191 3,  was  defective  in  that  it  was  not 
preceded  by  an  ordinance  prescribing  general  restric- 
tions for  the  protection  of  the  parkway.  Plaintiff  and 
defendant  appealed. 

275 


CARRYING   OUT  THE   CITY    PLAN 

Opinion: 

"The  view  we  take  of  the  case  requires  us  to  deter- 
mine the  single  question  whether  the  purpose  or  use 
for  which  the  city  intends  to  take  the  plaintiff's  land 
is  a  public  use  within  the  constitutional  provision  per- 
mitting its  appropriation  under  the  power  of  eminent 

domain Primarily   the   question 

is  for  the  legislative  department  of  the  government, 

but  ultimately  for  the  courts 

There  is  no  constitutional  or  statutory  definition  of  the 
words  'public  use/  and  none  of  the  adjudicated  cases 
has  given  a  definition  of  the  words  which  can  have 
universal  application.  It  has  been  held  that  the  words 
are  equivalent  to  public  benefit  or  advantage,  while 
numerous  other  cases  hold  that  to  constitute  a  public 
use  the  property  must  be  taken  into  direct  control  of 
the  public  or  of  public  agencies,  or  the  public  must 
have  the  right  to  use  in  some  way  the  property  ap- 
propriated. 

We  think  this  (latter)  interpretation  of  the  words 
'public  use'  is  in  accord  with  their  plain  and  natural 
signification,  and  with  the  weight  of  the  best  considered 
authorities.  It  furnishes  a  certain  guide  to  the  legisla- 
ture as  well  as  to  the  courts  in  appropriating  private 
property  for  public  use.  It  enables  the  state  and  the 
owner  to  determine  directly  their  respective  rights 
in  the  latter's  property.  If,  however,  public  benefit, 
utility  or  advantage  is  to  be  the  test  of  a  public  use, 
then,  as  suggested  by  the  authorities,  the  right  to 
condemn  the  property  will  not  depend  on  a  fixed 
standard  by  which  the  legislative  and  judicial  depart- 
ments of  the  government  are  to  be  guided,  but  upon 
the  views  of  those  who  at  the  time  are  to  determine  the 

276 


LEGISLATION    AND   DECISIONS 

question.  There  will  be  no  limit  to  the  power  of  either 
the  legislature  or  the  courts  to  appropriate  private 
property  to  public  use  except  their  individual  opinions 
as  to  what  is  and  what  is  not  for  the  public  advantage 
and  utility.  If  such  considerations  are  to  prevail,  the 
constitutional  guarantees  as  to  private  property  will  be 

of  small  moment 

We  think  that  the  sections  of  the  Act  of  1907, 
authorizing  the  acquisition  of  private  property  outside 
a  public  park,  parkway  and  playground,  are  not  a 
constitutional  exercise  of  legislative  authority.  It  will 
be  observed  that  these  sections  confer  authority  to 
appropriate  and  resell  with  such  restrictions  as  may  be 
prescribed  property  outside  the  line  of  the  parkway, 
and  it  is  justified  by  declaring  that  it  is  done  to  pro- 
tect the  parkway  and  for  the  preservation  of  the 
view,  appearance,  light,  air,  healthfulness  or  usefulness 
thereof.  The  protection  of  the  highway  is  the  only 
'public  use'  to  which  the  land  is  to  be  applied.  The 
property  is  not  to  be  taken  and  held  by  the  city  for 
any  use  for  which  a  statute  confers  on  the  city  the  right 
to  appropriate  it Prior  to  this  legisla- 
tion, the  state  had  not  authorized  the  taking  of  private 
property  by  the  exercise  of  the  power  of  eminent  do- 
main for  such  purpose.  It  is  a  step  far  in  advance  of 
the  policy  of  the  state  as  heretofore  declared  in  her 
organic  law,  and  is  a  liberal  construction  of  a  power 
which  we  have  uniformly  held  must  be  strictly  con- 
strued. 

Holding  as  we  do  that  the  use  to  be  made  of  prop- 
erty located  outside  a  public  highway  is  not  a  public 
use  for  which  private  property  may  be  taken  by  the 

277 


CARRYING   OUT  THE    CITY    PLAN 

city  against  the  consent  of  the  owners,  the  effect  of  the 
act  of  1907  is  to  permit  the  taking  of  the  property  of 
one  citizen  without  his  consent  and  vesting  the  title 

thereto    in    another One    may    be 

deprived  of  his  home  for  the  benefit  of  another.  In 
view  of  its  provisions  conferring  almost  unlimited  dis- 
cretion on  cities  or  their  officials  in  exercising  the  powers 
granted,  it  is  idle  to  say  that  the  statute  furnished  no 
opportunity  to  produce  such  results  or  to  promote  a 

private  purpose 

The  court  below  is  directed  to  enter  a  decree  declaring 
unconstitutional  so  much  of  the  Act  of  June  8,  1907,  as 
authorizes  cities  to  take  and  appropriate  neighboring 
private  property  within  200  feet  of  the  boundary  line  of 
property  appropriated  for  public  parks,  parkways  and 

playgrounds, and  enjoining  perpetually 

the  city  from  appropriating  plaintiff's  property  outside 
of  and  adjacent  to  the  parkway." 

6 

Constitution  of  Massachusetts.  Article  10,  Part  i 

Amended,  Nov.,  191 1 
The  legislature  may  by  special  acts  for  the  purpose 
of  laying  out,  widening  or  relocating  highways  or  streets, 
authorize  the  taking  in  fee  by  the  commonwealth,  or  by 
a  county,  city  or  town,  of  more  land  and  property  than 
are  needed  for  the  actual  construction  of  such  highway 
or  street :  provided,  however,  that  the  land  and  property 
authorized  to  be  taken  are  specified  in  the  act  and  are 
no  more  in  extent  than  would  be  sufficient  for  suitable 
building  lots  on  both  sides  of  such  highway  or  street, 
and  after  so  much  of  the  land  or  property  has  been 
appropriated  for  such  highway  or  street  as  is  needed 

278 


LEGISLATION    AND   DECISIONS 

therefor,  may  authorize  the  sale  of  the  remainder  for 
value  with  or  without  suitable  restrictions. 

7 

Proposed  Amendment   to    Constitution   of  New 
York.    Article  I,  Section  6 

Defeated,  191 1 

"When  private  property  shall  be  taken  for  public 
use  by  a  municipal  corporation,  additional  adjoining 
and  neighboring  property  may  be  taken  under  condi- 
tions to  be  prescribed  by  the  legislature  by  general 
laws;  property  thus  taken  shall  be  deemed  to  be  taken 
for  public  use."* 

8 
Amendment  to  Constitution  of  Wisconsin,  Article 

XI 

Adopted  Nov.  4,  1912 
Section  3a.  The  state  or  any  of  its  cities  may  acquire 
by  gift,  purchase  or  condemnation  lands  for  establish- 
ing, laying  out,  widening,  enlarging,  extending,  and 
maintaining  memorial  grounds,  streets,  squares,  park- 
ways, boulevards,  parks,  playgrounds,  sites  for  public 
buildings,  and  reservations  in  and  about  and  along  and 
leading  to  any  or  all  of  the  same;  and  after  the  estab- 
lishment, lay-out,  and  completion  of  such  improve- 
ments, may  convey  any  such  real  estate  thus  acquired 
and  not  necessary  for  such  improvements,  with  reserva- 
tions concerning  the  future  use  and  occupation  of  such 
real  estate,  so  as  to  protect  such  public  works  and  im- 
provements, and  their  environs,  and  to  preserve  the 

*See  page  248  of  this  Appendix  for  the  amendment  which  passed 
in  1913. 

279 


CARRYING   OUT  THE    CITY    PLAN 

view,  appearance,  light,  air,  and  usefulness  of  such 
public  works. 

9 

Amendment    to    Constitution    of    Ohio,    Article 

XVIII 

Adopted  19 1 2 
Section  10.  A  municipality  appropriating  or  other- 
wise acquiring  property  for  public  use  may  in  further- 
ance of  such  public  use  appropriate  or  acquire  an  ex- 
cess over  that  actually  to  be  occupied  by  the  improve- 
ment, and  may  sell  such  excess  with  such  restrictions 
as  shall  be  appropriate  to  preserve  the  improvement 
made.  Bonds  may  be  issued  to  supply  the  funds  in 
whole  or  in  part  to  pay  for  the  excess  property  so  ap- 
propriated or  otherwise  acquired,'  but  said  bonds  shall 
be  a  lien  only  against  the  property  so  acquired  for  the 
improvement  and  excess,  and  they  shall  not  be  a  lia- 
bility of  the  municipality  nor  be  included  in  any  limi- 
tation of  the  bonded  indebtedness  of  such  municipality 
prescribed  by  law. 

IV.  LEGISLATION  CREATING  PLANNING 
AGENCIES 

A.  BOARDS  OF  SURVEY 

Acts  of  Massachusetts,  1907,  Chap.  191 

AN  ACT  to  authorize  the  Establishment  of  Boards  of  Sur- 
vey in  Towns. 

Section  i.  The  selectmen  of  any  town  which  ac- 
cepts the  provisions  of  this  act  shall  constitute  a  board 
of  survey  for  that  town. 

Section  2.  Any  person  or  corporation  desiring  to 
lay  out,  locate  or  construct  any  street  or  way  in  any 

280 


LEGISLATION    AND    DECISIONS 

town  which  accepts  the  provisions  of  this  act,  after  the 
date  of  such  acceptance,  shall,  before  the  beginning  of 
such  construction,  submit  to  said  board  of  survey  suit- 
able plans  of  such  street  or  way,  to  be  prepared  in  ac- 
cordance with  such  rules  and  regulations  as  the  board 
may  prescribe.  Upon  the  receipt  of  such  plans,  with 
a  petition  for  their  approval,  the  board  shall  give  a 
public  hearing  thereon,  after  giving  notice  of  such  hear- 
ing by  publication  once  a  week  for  two  successive  weeks 
in  a  newspaper  published  in  the  town,  the  last  publica- 
tion to  be  at  least  two  days  before  the  hearing;  and 
after  such  hearing  the  board  may  alter  such  plans  and 
may  determine  where  such  street  or  way  shall  be  lo- 
cated, and  the  width  and  grades  thereof,  and  shall  so 
designate  on  said  plans.  The  plans  shall  then  be  ap- 
proved and  signed  by  the  board  and  filed  in  the  oifice 
of  the  clerk  of  the  town,  who  shall  attest  thereon  the 
date  of  the  filing. 

Section  3.  The  board  of  survey  shall  from  time  to 
time  cause  to  be  made  under  its  direction  plans  of  such 
territory  or  sections  of  land  in  any  town  which  accepts 
the  provisions  of  this  act,  as  the  board  may  deem  ad- 
visable, showing  thereon  the  location  of  such  street  or 
ways,  whether  already  laid  out  or  not,  as  the  board 
shall  be  of  opinion  that  the  present  or  future  interests 
of  the  public  require  or  will  require  in  such  territory, 
showing  clearly  the  direction,  width  and  grades  of  each 
street  or  way;  and  the  board  may  employ  such  as- 
sistants and  incur  such  expenses  in  regard  to  said  plans 
as  it  may  deem  necessary,  not  exceeding  the  amount 
of  money  appropriated  by  the  town  for  the  purpose. 
Before  making  any  such  plan  the  board  shall  give  a 
public  hearing  as  to  the  location,  direction,  width  and 

281 


CARRYING   OUT  THE   CITY    PLAN 

grades  of  streets  or  ways  in  the  territory  to  be  shown  on 
the  plan,  after  giving  notice  of  such  hearing  by  pubHca- 
tion  once  a  week  for  two  successive  weeks  in  a  newspa- 
per published  in  the  town,  the  last  publication  to  be 
atjeast  two  weeks  before  the  hearing,  and  shall,  after 
making  any  such  plan,  give  a  like  notice  of  hearing,  and 
a  hearing  thereon,  and  shall  keep  the  plan  open  to  pub- 
lic inspection  for  one  month  after  the  first  publication 
of  notice  of  such  hearing.  After  such  hearing  and  after 
the  alterations  deemed  necessary  by  the  board  have 
been  made  in  such  plan,  the  plan  shall  be  marked  as 
made  under  the  provisions  of  this  act,  shall  be  signed 
by  the  board,  and  shall  then  be  filed  in  the  office  of  the 
clerk  of  said  town,  who  shall  attest  thereon  the  date  of 
such  filing. 

Section  5.  If  any  building  shall  hereafter  be  placed 
or  erected  in  any  town  which  accepts  the  provisions 
of  this  act  within  the  boundaries  of  any  street  or  way 
shown  on  any  plan  filed  with  the  town  clerk  as  herein 
provided,  or  on  land  adjacent  to  any  such  street  or  way 
the  grade  of  which  at  the  time  of  placing  or  erecting 
such  building  is  other  than  the  grade  shown  on  said 
plan,  or  on  land  adjacent  to  any  street  or  way  the  plan 
and  profile  of  which  have  not  been  approved  by  said 
board  of  survey,  no  damages  caused  to  any  building  so 
placed  or  erected,  by  the  construction  of  such  street  or 
way  as  shown  on  said  plan,  or  caused  to  any  building 
so  placed  or  erected,  or  to  the  land  upon  which  such 
building  is  placed  or  erected,  by  the  subsequent  change 
of  grade  of  any  street  or  way  the  plan  of  which  has  not 
been  approved  by  said  board  of  survey,  shall  be  re- 
covered by  or  paid  to  the  owner  of  the  whole  or  any 
part  of  the  estate  of  which  the  land  upon  which  said 

282 


LEGISLATION    AND    DECISIONS 

building  so  placed  or  erected  formed  a  part  at  the  date 
of  the  first  publication  of  notice  of  hearing  as  aforesaid. 

B.  PLANNING  COMMISSIONS 


Acts  of  Massachusetts,  19 13.    Chap.  494 

AN  ACT  to  provide  for  the  establishment  of  local  planning 
boards  by  cities  and  towns. 

Section  i.  Every  city  of  the  commonwealth,  and 
every  town  having  a  population  of  more  than  ten  thou- 
sand at  the  last  preceding  national  or  state  census,  is 
hereby  authorized  and  directed  to  create  a  board  to  be 
known  as  the  planning  board,  whose  duty  it  shall  be  to 
make  careful  studies  of  the  resources,  possibilities  and 
needs  of  the  city  or  town,  particularly  with  respect  to 
conditions  which  may  be  injurious  to  the  public  health 
or  otherwise  injurious  in  and  about  rented  dwellings, 
and  to  make  plans  for  the  development  of  the  muni- 
cipality with  special  reference  to  the  proper  housing  of 
its  people.  In  cities,  the  said  board  shall  be  appointed 
by  the  mayor,  subject  to  confirmation  by  the  council, 
and  in  cities  under  a  commission  form  of  government, 
so  called,  the  members  of  the  board  shall  be  appointed 
by  the  governing  body  of  the  city.  In  towns,  the  mem- 
bers of  the  board  shall  be  elected  by  the  voters  at  the 
annual  town  meeting. 

Section  2.  Every  planning  board  established  here- 
under shall  make  a  report  annually  to  the  city  council 
or  governing  body  in  cities  and  to  the  annual  town  meet- 
ing in  towns,  giving  information  regarding  the  condi- 
tion of  the  city  or  town  and  any  plans  or  proposals  for 
the  development  of  the  city  or  town  and  estimates  of 
the  cost  thereof;  and  it  shall  be  the  duty  of  every  such 

283 


CARRYING   OUT   THE    CITY    PLAN 

local  planning  board  to  file  a  copy  of  all  reports  made  by 
it  with  the  homestead  commission. 

Section  3.  The  homestead  commission,  created  by 
chapter  six  hundred  and  seven  of  the  acts  of  the  year 
nineteen  hundred  and  eleven,  is  hereby  directed  to  call 
the  attention  of  the  mayor  and  city  governments  in 
cities  and  the  selectmen  in  each  town  having  a  popula- 
tion of  more  than  ten  thousand  at  the  last  preceding 
national  or  state  census  to  the  provisions  of  this  act 
in  such  form  as  may  seem  proper;  and  said  commission 
is  furthermore  authorized  and  directed  to  furnish  in- 
formation and  suggestions  from  time  to  time  to  city 
governments  and  to  the  selectmen  of  towns  and  to 
local  planning  boards,  when  the  same  shall  have  been 
created,  such  as  may,  in  its  judgment,  tend  to  promote 
the  purposes  of  this  act  and  of  those  for  which  the  said 
commission  was  established. 

Section  4.  The  city  council  or  other  governing  body 
in  cities  is  authorized  to  make  suitable  ordinances,  and 
towns  are  authorized  to  make  suitable  by-laws,  for 
carrying  out  the  purposes  of  this  act,  and  they  may  ap- 
propriate money  therefor. 

Section  5.  This  act  shall  take  effect  upon  its  passage. 
[Approved  April  16,  1913. 

2 

Laws  of  New  York,  191 3.    Chap.  699 

AN  ACT  to  amend  the  general  municipal  law  by  adding  there- 
to a  provision  authorizing  cities  and  incorporated  villages 
to  appoint  planning  commissions,  and  to  appropriate  money 
for  the  same. 

The  People  of  the  State  of  New  York,  represented  in 
Senate  and  Assembly,  do  enact  as  follows: 

Section    i.  The  general   municipal   law  is  hereby 
284 


LEGISLATION    AND    DECISIONS 

amended  by  adding  thereto  a  new  article  to  be  num- 
bered twelve-a,  to  be  entitled  city  and  village  planning 
commissions,  and  to  read  as  follows: 

ARTICLE  i2-a 
City  and  Village  Planning  Commissions 
Section  234.      Creation,  Appointment  and  Quali- 
fications. 

235.  Officers,  Expenses  and  Assistance. 

236.  General  Powers. 

237.  Maps  and  Recommendations. 

238.  Private  Streets. 

239.  Rules. 

239-a.  Construction  of  Article. 
Section  234.  Creation,  Appointment  and  Quali- 
fications. Each  city  and  incorporated  village  is  here- 
by authorized  and  empowered  to  create  a  commission 
to  be  known  as  the  city  or  village  planning  commission. 
Such  commission  shall  be  so  created  in  incorporated 
villages  by  resolution  of  the  trustees,  in  cities  by  or- 
dinance of  the  common  council,  except  that  in  cities  of 
the  first  class,  having  more  than  a  million  inhabitants, 
it  shall  be  by  resolution  of  the  board  of  estimate  and 
apportionment  or  other  similar  local  authority.  In 
cities  of  the  first  class  such  commission  shall  consist 
of  not  more  than  eleven,  in  cities  of  the  second  class  of 
not  more  than  nine,  in  cities  of  the  third  class  and  in- 
corporated villages  of  not  more  than  seven  members. 
Such  ordinance  or  resolution  shall  specify  the  public 
officer  or  body  of  said  municipality,  that  shall  appoint 
such  commissioners,  and  shall  provide  that  the  appoint- 
ment of  as  nearly  as  possible  one  third  of  them  shall  be 
for  a  term  of  one  year,  one  third  for  a  term  of  two 

285 


CARRYING   OUT   THE    CITY    PLAN 

years,  and  one  third  for  a  term  of  three  years;  and  that 
at  the  expiration  of  such  terms,  the  terms  of  office  of 
their  successors  shall  be  three  years;  so  that  the  term  of 
office  of  one  third  of  such  commissioners,  as  nearly  as 
possible,  shall  expire  each  year.  All  appointments  to 
fill  vacancies  shall  be  for  the  unexpired  term.  Not  more 
than  one  third  of  the  members  of  said  commission  shall 
hold  any  other  public  office  in  said  city  or  village. 

Section  235.  Officers,  Expenses  and  Assistance. 
The  commission  shall  elect  annually  a  chairman  from 
its  own  members.  It  shall  have  the  power  and  au- 
thority to  employ  experts,  clerks,  and  a  secretary,  and 
to  pay  for  their  services  and  such  other  expenses  as 
may  be  necessary  and  proper,  not  exceeding,  in  all,  the 
annual  appropriation  that  may  be  made  by  said  city 
or  village  for  said  commission.  The  body  creating  the 
commission  shall  by  ordinance  or  resolution  provide 
what  compensation  if  any,  each  of  such  commissioners 
shall  receive  for  his  services  as  such  commissioner. 
Each  city  and  incorporated  village  is  hereby  authorized 
and  empowered  to  make  such  appropriation  as  it  may 
see  fit  for  such  expenses  and  compensation,  such  ap- 
propriations to  be  made  by  those  officers  or  bodies  in 
such  city  or  village  having  charge  of  the  appropriation 
of  the  pubHc  funds. 

Section  236.  General  Powers.  The  body  creat- 
ing such  planning  commission  may,  at  any  time,  by 
ordinance  or  resolution,  provide  that  the  following  mat- 
ters, or  any  one  or  more  of  them,  shall  be  referred 
for  report  thereon,  to  such  commission  by  the  board, 
commission,  commissioner  or  other  public  officer  or 
officers  of  said  city  or  village  which  is  the  final  author- 
ity thereon  before  final  action  thereon  by  such  author- 

286 


LEGISLATION    AND    DECISIONS 

ity:  the  adoption  of  any  map  or  plan  of  said  city  or  in- 
corporated village,  or  part  thereof,  including  drainage 
and  sewer  or  water  system  plans  or  maps,  and  plans 
or  maps  for  any  public  water  front,  or  marginal  street, 
or  public  structure  upon,  in  or  in  connection  with  such 
front  or  street,  or  for  any  dredging,  filling  or  fixing  of 
lines  with  relation  to  said  front;  any  change  of  any 
such  maps  or  plans;  the  location  of  any  public  struc- 
ture upon,  in  or  in  connection  with,  or  fixing  lines  with 
relation  to  said  front ;  the  location  of  any  public  build- 
ing, bridge,  statue  or  monument,  highway,  park,  park- 
way, square,  playground  or  recreation  ground,  or  pub- 
lic open  place  of  said  city  or  village.  In  default  of  any 
such  ordinance  or  resolution  all  of  said  matters  shall  be 
so  referred  to  said  planning  commission. 

The  body  creating  such  planning  commission  may, 
at  any  time,  by  ordinance  or  resolution,  fix  the  time 
within  which  such  planning  commission  shall  report 
upon  any  matter  or  class  of  matters  to  be  referred  to  it, 
with  or  without  the  further  provision  that  in  default  of 
report  within  the  time  so  fixed,  the  planning  commis- 
sion shall  forfeit  the  right  further  to  suspend  action,  as 
aforesaid  with  regard  to  the  particular  matter  upon 
which  it  has  so  defaulted.  In  default  of  any  such  or- 
dinance or  resolution,  no  such  action  shall  be  taken  until 
such  report  is  so  received,  and  no  adoption,  change, 
fixing  or  location  as  aforesaid  by  said  final  authority, 
prior  thereto,  shall  be  valid.  No  ordinance  or  resolu- 
tion shall  deprive  said  planning  commission  of  its  right 
or  relieve  it  of  its  duty,  to  report,  at  such  time  as  it 
deems  proper,  upon  any  matter  at  any  time  referred  to 
it. 

This  section  shall  not  be  construed  as  intended  to 

287 


CARRYING   OUT  THE   CITY    PLAN 

limit  or  impair  the  power  of  any  art  commission,  park 
commission  or  commissioner,  now  or  hereafter  existing 
by  virtue  of  any  provision  of  law,  to  refuse  consent  to 
the  acceptance  by  any  municipality  of  the  gift  of  any 
work  of  art  to  said  municipality,  without  reference  of 
the  matter,  by  reason  of  its  proposed  location  or  other- 
wise, to  said  planning  commission.  Nor  shall  this  sec- 
tion be  construed  as  intended  to  limit  or  impair  any 
other  power  of  any  such  art  commission  or  affect  the 
same,  except  in  so  far  as  it  provides  for  reference  or  re- 
port, or  both,  on  any  matter  before  final  action  thereon 
by  said  art  commission. 

Section  237.  Maps  and  Recommendations.  Such 
planning  commission  may  cause  to  be  made  a  map  or 
maps  of  said  city  or  village  or  any  portion  thereof,  or 
of  any  land  outside  the  limits  of  said  city  or  village  so 
near  or  so  related  thereto  that  in  the  opinion  of  said 
planning  commission  it  should  be  so  mapped.  Such 
plans  may  show  not  only  such  matters  as  by  law  have 
been  or  may  be  referred  to  the  planning  commission, 
but  also  any  and  all  matters  and  things  with  relation  to 
the  plan  of  said  city  or  village  which  to  said  planning 
commission  seem  necessary  and  proper,  including  rec- 
ommendations and  changes  suggested  by  it;  and  any 
report  at  any  time  made,  may  include  any  of  the  above. 
Such  planning  commission  may  obtain  expert  assistance 
in  the  making  of  any  such  maps  or  reports,  or  in  the  in- 
vestigations necessary  and  proper  with  relation  thereto. 

Section  238.  Private  Streets.  The  body  creat- 
ing such  planning  commission  may  at  any  time,  by 
ordinance  or  resolution,  provide  that  no  plan,  plot  or 
description,  showing  the  layout  of  any  highway  or 
street  upon  private  property,  or  of  building  lots  in  con- 

288 


LEGISLATION    AND    DECISIONS 

nection  with  or  in  relation  to  such  highway  or  street 
shall,  within  the  limits  of  any  municipality  having  a 
planning  commission,  as  aforesaid,  be  received  for 
record  in  the  office  of  the  clerk  of  the  county  where  such 
real  property  is  situated,  until  a  copy  of  said  plan,  plot 
or  description  has  been  filed  with  said  commission  and 
it  has  certified,  with  relation  thereto,  its  approval  there- 
of. Such  certificate  shall  be  recorded  as  a  part  of  the 
record  of  said  original  instrument  containing  said  plan, 
plot,  or  description.  No  such  street  or  highway  which 
has  not  received  the  approval  of  the  planning  commis- 
sion shall  be  accepted  by  said  city  or  village  until  the 
matter  has  been  referred  to  such  commission  under  the 
provision  of  section  two  hundred  and  thirty-six  of  this 
article.  But  if  any  such  street  is  plotted  or  laid  out  in 
accordance  with  the  map  of  said  municipality,  adopted 
according  to  law,  then  it  shall  not  be  necessary  to  file 
such  copy,  or  obtain  or  record  such  certificate. 

Section  239.  Rules.  Such  commission  may  make 
rules  not  contrary  to  law,  to  govern  its  action  in  carry- 
ing out  the  provisions  of  this  article. 

Section  239-a.  Construction  of  Article.  This 
article  shall  be  construed  as  the  grant  of  additional 
power  and  authority  to  cities  and  incorporated  villages, 
and  not  as  intended  to  limit  or  impair  any  existing  power 
or  authority  of  any  city  or  village. 

Any  city  or  incorporated  village  in  order  to  appoint 
a  planning  commission  under  this  article  shall  recite, 
in  the  ordinance  or  resolution  so  creating  the  commis- 
sion, the  fact  that  it  is  created  under  this  article. 

Section  2.  This  act  shall  take  effect  immediately. 


20  289 


CARRYING  OUT  THE   CITY    PLAN 


State  of  New  York, 
Office  of  the  Secretary  of  State 


I  have  compared  the  preceding  with  the  original  law  on  file  in 
this  office,  and  do  hereby  certify  that  the  same  is  a  correct  tran- 
script therefrom  and  of  the  whole  of  the  said  original  law, 

Mitchell  May, 
Secretary  oj  State. 

3 

Laws  of  Pennsylvania,  General  Assembly.    No. 

406,  of  191 3 

A  SUPPLEMENT  to  an  Act  entitled.  "An  act  providing  for 
the  incorporation  and  government  of  cities  of  the  third 
class,"  approved  the  twenty-third  day  of  May,  Anno 
Domini  one  thousand  eight  hundred  eighty-nine,  creating 
a  City  Planning  Department,  defining  its  jurisdiction,  and 
extending  the  same  so  as  to  regulate  the  laying  out  and 
recording  of  plans  of  lots  within  the  limits  of  the  city,  and 
for  three  miles  beyond  the  city  limits;  and  to  regulate  the 
making  and  use  of  certain  public  improvements  until  said 
plans  are  approved  by  said  department  and  authorizing 
the  exercise  of  the  powers  herein  provided  by  a  park  or 
other  municipal  commission. 

Section  i.  Be  it  enacted,  &c.,  That  an  additional  ex- 
ecutive department  in  the  government  of  cities  of  the 
third  class  is  hereby  created,  to  be  known  as  the  De- 
partment of  City  Planning,  which  shall  be  in  charge 
of  a  City  Planning  Commission,  consisting  of  five  per- 
sons, to  be  appointed  by  the  mayor  and  councils.  In 
the  first  instance,  one  member  of  said  commission  shall 
be  appointed  for  one  year,  one  member  for  two  years, 
one  member  for  three  years,  one  member  for  four  years, 
and  one  member  for  five  years,  and  annually  there- 
after a  member  of  said  commission  shall  be  appointed 
for  a  term  of  five  years.  An  appointment  to  fill  a  cas- 
ual vacancy  shall  be  only  for  the  unexpired  portion  of 
the  term.  All  members  of  the  said  commission  shall 
reside  within  the  zone  of  jurisdiction  of  said  commis- 

290 


LEGISLATION    AND    DECISIONS 

sion,  as  hereinafter  defined.  They  may  make  and  alter 
rules  and  regulations  for  their  own  organization  and 
procedure,  consistent  with  the  ordinances  of  the  city 
and  the  laws  of  the  Commonwealth.  They  shall  serve 
without  compensation,  and  make  annually  to  the  mayor 
and  councils  a  report  of  their  transactions.  They  may 
employ  engineers  and  other  persons,  whose  salaries 
and  wages,  and  other  necessary  expenses  of  the  com- 
mission, shall  be  provided  for  through  proper  appro- 
priation by  councils. 

Section  2.  The  clerks  of  council  shall,  upon  intro- 
duction, furnish  to  the  City  Planning  Commission,  for 
its  consideration,  a  copy  of  all  ordinances  and  bills, 
and  all  amendments  thereto,  relating  to  the  location 
of  any  public  building  of  the  city;  and  to  the  location, 
extension,  widening,  narrowing,  enlargement,  orna- 
mentation, and  parking  of  any  street,  boulevard,  park- 
way, park,  playground,  or  other  public  ground;  and  to 
the  relocation,  vacation,  curtailment,  changes  of  use, 
or  any  other  alteration  of  the  city  plan,  with  relation 
to  any  of  the  same;  and  to  the  location  of  any  bridge, 
tunnel,  and  subway,  or  any  surface,  underground,  or 
elevated  railway.  The  said  commission  shall  have  the 
power  to  disapprove  any  of  the  said  ordinances,  bills, 
or  amendments,  which  disapproval,  however,  must  be 
communicated  to  councils,  in  writing,  within  ten  days 
from  the  introduction  of  said  ordinances;  but  such  dis- 
approval shall  not  operate  as  a  veto. 

Section  3.  The  City  Planning  Commission  may  make 
or  cause  to  be  made,  and  lay  before  councils,  and  at 
its  discretion  cause  to  be  published,  maps  of  the  city 
or  any  portion  thereof,  including  territory  extending 
three  miles  beyond  the  city  limits,  showing  the  streets, 

291 


CARRYING   OUT   THE    CITY    PLAN 

and  highways  and  other  natural  and  artificial  fea- 
tures, and  also  locations  proposed  by  it  for  any  new 
public  buildings,  civic  centre,  street,  parkway,  park, 
playground,  or  any  other  public  ground  or  public  im- 
provement, or  any  widening,  extension,  or  relocation  of 
the  same,  or  any  change  in  the  city  plan  by  it  deemed 
advisable;  and  it  may  make  recommendations  to 
councils,  from  time  to  time,  concerning  any  such  mat- 
ters and  things  aforesaid,  for  action  by  councils  thereto; 
and,  in  so  doing,  have  regard  for  the  present  conditions 
and  future  needs  and  growth  of  the  city,  and  the  dis- 
tribution and  relative  location  of  all  the  principal  and 
other  streets  and  railways,  waterways,  and  all  other 
means  of  public  travel  and  business  communications, 
as  well  as  the  distribution  and  relative  location  of  all 
public  buildings,  public  grounds,  and  open  spaces  de- 
voted to  public  use. 

Section  4.  The  City  Planning  Commission  may 
make  recommendations  to  any  public  authorities,  or 
any  corporations  or  individuals  in  said  cities,  with 
reference  to  the  location  of  any  buildings,  structures, 
or  works  to  be  erected  or  constructed  by  them. 

Section  5.  All  plans,  plots,  or  re-plots  of  lands  laid 
out  in  building  lots,  and  the  streets,  alleys,  or  other  por- 
tions of  the  same  intended  to  be  dedicated  to  public 
use,  or  for  the  use  of  purchasers  or  owners  of  lots  front- 
ing thereon  or  adjacent  thereto,  and  located  within  the 
city  limits,  or  for  a  distance  of  three  miles  outside 
thereof,  shall  be  submitted  to  the  City  Planning  Com- 
mission and  approved  by  it  before  it  shall  be  recorded. 
And  it  shall  be  unlawful  to  receive  or  record  such  plan 
in  any  public  office  unless  the  same  shall  bear  thereon, 
by  endorsement  or  otherwise,  the  approval  of  the  City 

292 


LEGISLATION    AND    DECISIONS 

Planning  Commission.  The  disapproval  of  any  such 
plan  by  the  City  Planning  Commission  shall  be  deemed 
a  refusal  of  the  proposed  dedication  shown  thereon. 
The  approval  of  the  commission  shall  be  deemed  an  ac- 
ceptance of  the  proposed  dedication;  but  shall  not  im- 
pose any  duty  upon  the  city  concerning  the  mainte- 
nance or  improvement  of  any  such  dedicated  parts, 
until  the  proper  authorities  of  the  city  shall  have  made 
actual  appropriation  of  the  same  by  entry,  use,  or  im- 
provement. No  sewer,  water,  or  gas-main,  or  pipes, 
or  other  improvement,  shall  be  voted  or  made  within 
the  area  under  the  jurisdiction  of  said  commission,  for 
the  use  of  any  such  purchasers  or  owners;  nor  shall  any 
permit  for  connection  with  or  other  use  of  any  such  im- 
provement existing,  or  for  any  other  reason  made,  be 
given  to  any  such  purchasers  or  owners  until  such  plan 
is  so  approved.  Where  the  jurisdictional  limit  of  three 
miles  outside  of  the  city  limits,  as  provided  in  this  sec- 
tion, may  conflict  with  the  zone  of  similar  character 
connected  with  another  city  of  the  third  class,  the  juris- 
diction of  said  commission  shall  extend  only  to  the  point 
equidistant  between  the  city  limits  and  the  limits  of 
said  municipality. 

Section  6.  It  shall  be  proper  for  said  cities  to  pro- 
vide, by  ordinance,  for  the  exercise  of  all  rights  and 
powers  herein  conferred  upon  the  City  Planning  Com- 
mission, by  a  park  commission,  or  kindred  municipal 
bureau  or  commission,  authorized  under  existing  laws. 
And  no  person  holding  office  under  the  government  of 
any  of  said  cities,  except  the  mayor,  members  of  coun- 
cils, or  commissioners,  shall  be  ineligible  to  serve  as  a 
member  of  a  City  Planning  Commission. 

Section  7.  All  acts  and  parts  of  acts  inconsistent 
with  this  act  are  repealed. 

293 


CARRYING   OUT   THE   CITY    PLAN 

Approved — ^The  i6th  day  of  July,  A.  D.  191 3. 

John  K.  Tener. 
The  foregoing  is  a  true  and  correct  copy  of  the  Act 
of  the  General  Assembly,  No.  406. 

Robert  McAfee, 
Secretary  of  the  Commonwealth. 


Laws  of  New  Jersey,  191 3.    Chap.  72 

AN  ACT  to  enable  cities  of  the  first  class  in  this  State  to  pro- 
vide for  a  city  plan  commission  and  provide  funds  for  the 
same  and  defining  the  duties  thereof. 

Be  IT  ENACTED  by  the  Senate  and  General  Assembly 
of  the  State  of  New  Jersey: 

I.  In  cities  of  the  first  class  it  shall  be  lawful  for  the 
mayor  to  appoint  a  commission  to  be  known  as  the 
*'  City  Plan  Commission, ''  to  consist  of  not  more  than 
nine  citizens  of  such  city,  and  the  terms  of  office  of  all 
of  such  commissioners  shall  begin  upon  the  first  day  of 
January  next  succeeding  the  date  of  their  appointment 
in  such  city. 

Whenever  commissioners  shall  be  appointed  under 
this  act,  the  terms  of  such  commissioners  shall  be 
divided  into  classes  of  one,  two  and  three  years,  and 
the  mayor  shall  designate  which  of  such  commissioners 
shall  hold  such  respective  terms  under  the  first  appoint- 
ment, and  shall  divide  the  said  commissioners,  as  nearly 
as  may  be,  into  such  classes,  and  said  commissioners 
first  appointed  as  aforesaid  shall  hold  their  terms  for 
one,  two  and  three  years  respectively. 

All  subsequent  appointments  shall  be  for  the  term 

of  three  years,  and  in  case  any  vacancy  arises  the 

appointment  to  fill  the  same  shall  be  for  the  unexpired 

term. 

294 


LEGISLATION    AND    DECISIONS 

Any  city  plan  commission  now  existing  in  any  such 
city  shall  be  continued,  but  with  the  powers  and  duties 
herein  provided,  until  the  appointment  of  new  com- 
missioners, under  the  provisions  of  this  act. 

2.  Such  commissions  shall  serve  without  pay,  and 
it  shall  be  the  duty  of  such  commission  to  prepare,  from 
time  to  time,  plans  for  the  systematic  and  further  de- 
velopment and  betterment  of  such  city.  It  shall  have 
the  power  and  authority  to  employ  experts,  clerks  and 
a  secretary,  and  to  pay  for  their  services,  and  to  pay  for 
such  other  expenses  as  such  commission  may  lawfully 
incur  under  the  powers  hereby  granted,  including  the 
necessary  disbursements  incurred  by  its  members  in 
the  performance  of  their  duties  as  members  of  said 
commission;  provided,  however,  that  the  total  amount 
so  expended  in  any  one  year  shall  not  exceed  the 
appropriation  for  such  year  as  hereinafter  provided. 

The  said  city  plan  commission  may  consider  and 
investigate  any  subject  matter  tending  to  the  develop- 
ment and  betterment  of  such  city,  and  make  such 
recommendations  as  it  may  deem  advisable  concerning 
the  adoption  thereof  to  any  department  of  the  muni- 
cipal government,  and  for  any  purpose  make,  or  cause 
to  be  made,  surveys,  plans  or  maps. 

3.  All  questions  concerning  the  location  and  arch- 
itectural design  of  any  work  of  art,  statue  or  other 
memorial  within  such  city  shall  be  referred  to  the  city 
plan  commission  for  its  consideration  and  report  before 
final  action  is  taken  thereon. 

All  plats  or  replats  of  any  lands  within  the  limits  of 
such  city  shall  be  submitted  to  the  city  plan  commis- 
sion for  its  recommendation  before  the  same  are  ap- 
proved. 

4.  It  shall  be  lawful  for  the  board  or  body  having 

295 


CARRYING   OUT  THE   CITY    PLAN 

charge  of  the  finances  of  any  city  of  the  first  class  as 
aforesaid,  to  appropriate  any  amount  not  exceeding 
twenty-five  thousand  (25,000)  dollars  any  year  that 
such  commission  may  remain  in  existence,  for  the  ex- 
penses of  such  city  plan  commission,  and  the  moneys 
required  for  the  expenses  of  said  commission  shall  be 
raised  by  annual  tax  upon  real  and  personal  property 
as  other  taxes  are  raised  in  and  for  such  city;  provided, 
however,  that  for  the  fiscal  year  in  which  this  act  be- 
comes effective,  such  moneys  may  be  raised  by  said 
board  or  body  having  charge  of  the  finances  of  such 
city,  by  appropriating  for  that  purpose  any  moneys  in 
the  treasury  of  such  city  not  otherwise  appropriated, 
or  by  issuing  and  selling  temporary  loan  bonds  or 
certificates  of  indebtedness;  provided,  that  such  bonds 
or  certificates  shall  be  sold  at  public  or  private  sale, 
after  due  advertisement,  at  not  less  than  par;  which 
bonds  shall  bear  interest  at  not  more  than  five  per 
centum  per  annum,  and  the  payment  thereof,  with 
interest,  shall  be  provided  for  in  the  next  tax  levy. 

5.  All  acts  or  parts  of  acts  inconsistent  with  the  pro- 
visions of  this  act  are  hereby  repealed. 

6.  This  act  shall  take  effect  immediately. 
Approved  March  12,  191 3. 

5 
Special  Acts  of  Connecticut,  1907.  No.  61 
Section  i.  That  there  shall  be  in  the  city  of  Hartford 
a  commission  on  the  city  plan,  which  shall  consist  of 
the  mayor,  who  shall  be  its  presiding  officer,  the  presi- 
dent of  the  board  of  street  commissioners,  the  president 
of  the  board  of  park  commissioners,  the  city  engineer, 
two  citizens,  neither  of  whom  shall  hold  any  other 

296 


LEGISLATION    AND    DECISIONS 

office  in  said  city  government,  one  member  of  the  board 
of  aldermen,  and  one  member  of  the  common  council 
board,  to  be  appointed  as  hereinafter  provided. 

Section  2.  The  necessary  expenses  of  said  commission 
shall  be  paid  by  the  city,  but  no  member  thereof  shall 
be  paid  for  his  services  as  such  member. 

Section  3.    Terms  of  commissioners 

Section  4.  All  questions  concerning  the  location 
of  any  public  building,  esplanade,  boulevard,  parkway, 
street,  highway,  square,  or  park  shall  be  referred  to  said 
commission  by  the  court  of  common  council  for  its 
consideration  and  report  before  final  action  is  taken  on 
such  location. 

Section  5.  The  court  of  common  council  may  refer 
to  said  commission  the  construction  or  carrying  out  of 
any  public  work  not  expressly  within  the  province  of 
other  boards  or  commissions  of  said  city,  and  may  dele- 
gate to  said  commission  all  powers  which  the  said 
council  deems  necessary  to  complete  such  work  in  all 
details. 

Section  6.  Said  commission  may  make  or  cause  to  be 
made  a  map  or  maps  of  said  city,  or  any  portion  thereof, 
showing  locations  proposed  by  it  for  any  new  public 
building,  esplanade,  boulevard,  parkway,  or  street,  and 
grades  thereof,  any  street,  building,  and  veranda  lines 
and  grades  thereon,  or  for  any  new  square  or  park,  or 
any  changes  by  it  deemed  advisable  in  the  present 
location  of  any  public  building,  street,  grades  and  lines, 
square  or  park,  and  may  employ  expert  advice  in  the 
making  of  such  map  or  maps. 

Section  7.  Said  City  of  Hartford,  acting  through 
said  commission  or  otherwise,  shall  have  power  to 
appropriate,  enter  upon,  and  hold  in  fee  real  estate 

297 


CARRYING   OUT   THE    CITY    PLAN 

within  its  corporate  limits  for  establishing  esplanades, 
boulevards,  parkways,  park  grounds,  streets,  highways, 
squares,  sites  for  public  buildings,  and  reservations  in 
and  about  and  along  and  leading  to  any  or  all  of  the 
same;  and,  after  the  establishment,  lay-out,  and  com- 
pletion of  such  improvements,  may  convey  any  real 
estate,  thus  acquired  and  not  necessary  for  such  im- 
provements, with  or  without  reservations,  concerning 
the  future  use  and  occupation  of  such  real  estate  so 
as  to  protect  such  public  works  and  improvements  and 
their  environs,  and  to  preserve  the  view,  appearance, 
light,  air,  and  usefulness  of  such  public  works. 

6 
Acts  of  Maryland,  1910.    Chap.  144 

AN  ACT  to  add  a  new  section  relating  to  the  creation  of  a 
Commission  on  City  Plan  to  Article  4,  entitled  "City  of 
Baltimore,"  of  the  Code  of  Public  Local  Laws  of  Mary- 
land, to  come  in  immediately  after  Section  200,  and  to  be 
known  as  Section  200a. 

Section  i.  Be  it  enacted  by  the  General  Assembly  0} 
Maryland,  That  a  new  section  be  and  the  same  is  hereby 
added  to  Article  4,  entitled  "City  of  Baltimore,"  of  the 
Code  of  Public  Local  Laws  of  Maryland,  to  come  in 
immediately  after  Section  200  and  to  be  known  as 
Section  200a,  and  to  read  as  follows: 

20oa.  There  shall  be  a  Commission  on  City  Plan,  to 
consist  of  the  Mayor  of  the  City  of  Baltimore  and  eight 
other  members  who  shall  be  appointed  by  the  Mayor 
in  the  manner  prescribed  in  Section  twenty-five  of  this 
Article,  who  shall  hold  their  offices  as  in  said  section 
provided,  and  shall  serve  without  pay;  one  of  the  said 
commissioners  shall  be  president  of  said  commission, 
and  shall  be  so  designated  by  the  Mayor;  the  said  com- 

298 


LEGISLATION    AND    DECISIONS 

mission  may  elect  a  secretary,  who  shall  be  paid  such 
salary  as  may  be  provided  for  by  ordinance  and  who 
shall  perform  such  duties  as  may  be  from  time  to  time 
prescribed  by  said  commission.  The  said  commission 
shall  investigate  all  plans  proposed  for  the  construction 
or  extension  of  public  highways  in  the  City  of  Balti- 
more and  the  establishment  of  a  civic  centre  or  other 
public  improvements  in  connection  therewith,  and  shall 
report  the  results  of  such  investigations  from  time  to 
time  to  the  Mayor  and  City  Council,  and  shall  perform 
such  other  duties  and  exercise  such  other  powers  as 
may  be  delegated  to  it  or  as  may  be  prescribed  by  ordi- 
nances not  inconsistent  with  this  Article. 

7 
Charter  of  City  of  Cleveland 

Adopted  July  i,  19 13 

Section  77.  City  Plan  Commission.  There  shall  be 
a  city  plan  commission  to  be  appointed  by  the  mayor 
with  power  to  control,  in  the  manner  provided  by 
ordinance,  the  design  and  location  of  works  of  art 
which  are,  or  may  become,  the  property  of  the  city; 
the  plan,  design  and  location  of  public  buildings,  har- 
bors, bridges,  viaducts,  street  fixtures,  and  other  struc- 
tures and  appurtenances;  the  removal,  relocation  and 
alteration  of  any  such  works  belonging  to  the  city;  the 
location,  extension  and  platting  of  streets,  parks  and 
other  public  places,  and  of  new  areas;  and  the  prepara- 
tion of  plans  for  the  future  physical  development  and 
improvement  of  the  city. 


299 


CARRYING   OUT   THE    CITY    PLAN 
8 

Laws  of  Pennsylvania.    General  Assembly.    No. 
226,  of  191 3 

AN  ACT  to  create  Suburban  Metropolitan  Districts  of  the 
areas  within  twenty-five  miles  of  the  limits  of  cities  of  the 
first  class;  to  provide  for  the  creation  of  a  Department  of 
Suburban  Metropolitan  Planning  and  the  appointment  of 
Suburban  Metropolitan  Planning  Commissions  for  such 
districts;  to  prescribe  their  powers  and  duties;  and  to  pro- 
vide for  assessment  upon  the  cities,  boroughs  and  town- 
ships within  the  limits  thereof. 

Whereas,  The  establishment  of  Suburban  Metropoli- 
tan Planning  Commissions  having  jurisdiction  over 
territory  adjacent  to  cities  of  the  first  class  is  desirable, 
in  order  to  provide  for  its  proper  development  by  the 
cooperation  of  the  various  local  governmental  units  in 
matters  pertaining  to  their  common  welfare;  and 

Whereas,  it  is  desirable,  that  there  should  be  co- 
ordination of  effort  with  Urban  Metropolitan  Planning 
Commissions,  relating  to  cities  of  the  first  class  them- 
selves, wherever  the  same  may  exist: — 

Section  i.  Be  it  enacted,  &c..  That  in  order  to  se- 
cure coordinated,  comprehensive  plans  of  highways  and 
roads,  parks  and  parkways,  and  all  other  means  of 
inter-communication,  water-supply,  sewerage  and  sew- 
age disposal,  collection  and  disposal  of  garbage,  hous- 
ing, sanitation  and  health  playgrounds,  civic  centers, 
and  other  public  improvements,  as  hereinafter  provided 
for,  the  districts  surrounding  and  within  twenty-five 
miles  of  the  limits  of  cities  of  the  first  class,  whether 
in  one  or  more  counties,  and  in  order  to  prevent  waste 
by  unnecessary  duplication,  the  areas  included  within 
twenty-five  miles  of  the  limits  of  cities  of  the  first  class 
shall  be  denominated  the  Suburban  Metropolitan  Dis- 
tricts of  cities  of  the  first  class  of  Pennsylvania.     When 

300 


LEGISLATION    AND    DECISIONS 

any  city,  borough,  or  township  is  partly  within  and 
partly  without  the  twenty-five  mile  limit,  the  whole  of 
such  city,  borough,  or  township  shall  be  regarded  as 
within  the  Suburban  Metropolitan  District. 

Section  2.  There  shall  be  an  executive  department 
created  for  every  Suburban  Metropolitan  District,  to 
be  known  as  the  Department  of  Suburban  Metropolitan 
Planning,  which  shall  be  in  charge  of  a  Suburban 
Metropolitan  Planning  Commission. 

Section  3.  The  Suburban  Metropolitan  Planning 
Commission  shall  be  appointed  by  the  Governor  of 
the  State  of  Pennsylvania,  and  shall  consist  of  fifteen 
members,  who  may  or  may  not  hold  other  public  office, 
whether  for  profit  or  otherwise,  of  whom  twelve  shall 
be  residents  of  the  district  involved,  and  three  shall 
be  residents  of  the  said  city  of  the  first  class,  five  mem- 
bers to  be  appointed  to  serve  for  one  year,  five  for 
two  years,  five  for  three  years;  then,  thereafter,  each 
appointment  to  be  for  three  years. 

An  appointment  to  fill  a  casual  vacancy  shall  be  for 
the  unexpired  portion  of  the  term.  Nine  shall  con- 
stitute a  quorum. 

The  Suburban  Metropolitan  Planning  Commission 
shall  make  and  alter  rules  and  regulations  for  its  own 
organization  and  procedure,  consistent  with  the  laws 
of  the  Commonwealth.  From  its  own  members  it  shall 
choose  a  chairman  and  vice-chairman.  Each  member 
shall  serve  without  compensation.  On  or  before  Janu- 
ary tenth  of  each  and  every  year,  the  Commission  shall 
make  to  the  mayor  of  each  city,  to  councils  of  each 
borough,  to  the  commissioners  of  each  first  class  town- 
ship, and  to  the  supervisors  of  each  second  class  town- 
ship, within  the  Suburban  Metropolitan  District,  to 

301 


CARRYING   OUT   THE    CITY    PLAN 

the  mayor  of  the  said  city  of  the  first  class,  and  to  the 
Governor  of  the  State  of  Pennsylvania,  a  report  of  its 
transactions  and  recommendations.  The  Commission 
may  employ  a  secretary,  engineers,  and  other  experts 
and  persons,  whose  salaries  and  wages,  as  well  as  all 
the  other  necessary  expenses  of  the  Commission  and 
members  thereof,  shall  be  provided  for  as  hereinafter 
set  forth. 

Section  4.  The  Suburban  Metropolitan  Planning 
Commission  shall  make,  or  cause  to  be  made,  and  laid 
before  the  respective  governmental  authorities  of  the 
district,  and,  in  its  discretion,  caused  to  be  published, 
a  map  or  maps  of  the  entire  district,  or  any  portion  or 
portions  thereof,  showing  any  or  all  systems  of  trans- 
portation, highways  and  roads,  parks,  parkways,  water- 
supply,  sewerage  and  sewage  disposal,  collection  and 
disposal  of  garbage,  housing,  sanitation,  playgrounds 
and  civic  centers,  or  of  other  natural  physical  features 
of  the  district;  and  it  shall  prepare  plans  for  any  new 
or  enlarged  facilities  for  intercommunication,  parks, 
parkways,  water-supply  systems,  sewers,  sewage  dis- 
posal, garbage  disposal,  land  plottings  and  housing 
arrangements,  playgrounds  and  civic  centers,  or  any 
other  public  improvement  that  will  affect  the  character 
of  the  district  as  a  whole,  or  more  than  one  political 
unit  within  the  district,  or  any  widening,  extension, 
or  relocation  of  the  same,  or  any  change  in  the  existing 
township  or  borough  or  city  plans,  by  it  deemed  ad- 
visable. And  it  shall  make  recommendations  to  the 
respective  governmental  authorities,  from  time  to  time, 
concerning  any  such  matters  or  things  aforesaid,  for 
action  by  the  respective  legislative,  administrative,  or 
governmental  bodies  thereon ;  and  in  so  doing  have  re- 

302 


LEGISLATION    AND    DECISIONS 

gard  for  the  present  conditions  and  future  needs  and 
growth  of  the  district,  and  the  distribution  and  rela- 
tive location  of  all  the  principal  and  other  streets,  and 
railways,  waterways,  and  all  other  means  of  public 
travel  and  business  communications,  as  well  as  the 
distribution  and  relative  location  of  all  public  build- 
ings, public  grounds,  and  open  spaces  devoted  to  public 
use,  and  the  planning,  subdivision  and  laying  out  for 
urban  uses  of  private  grounds  brought  into  the  market 
from  time  to  time. 

Section  5.  Any  city,  borough,  or  township,  within 
any  Suburban  Metropolitan  District,  may  request  the 
Suburban  Metropolitan  Planning  Commission  of  that 
district  to  prepare  plans  concerning  any  of  the  subjects 
set  forth  in  section  four  of  this  act;  whereupon  it  shall 
be  the  duty  of  the  Commission  to  prepare  such  plans 
with  dispatch. 

Section  6.  The  Suburban  Metropolitan  Planning 
Commission  may  make  recommendations  to  any  public 
authorities,  or  any  corporation  or  individual  in  said 
districts,  with  reference  to  the  location  of  any  build- 
ings and  structures  to  be  constructed  by  them. 

Section  7.  The  plans  so  made  and  laid  before  the 
respective  governmental  authorities  by  the  Suburban 
Metropolitan  District  Planning  Commission,  accord- 
ing to  sections  four,  five  and  six,  shall  be  considered 
by  such  respective  authorities,  and  followed  by  them 
in  so  far  as  shall  be  determined  by  each  authority: 

Provided  however,  That  the  provisions  of  this  act 
shall  not  abridge  or  in  any  way  affect  the  provisions 
of  an  act,  entitled  "An  act  creating  a  Department  of 
Health,  and  defining  its  powers  and  duties/'  approved 
the  twenty-seventh  day  of  April,  Anno  Domini,  one 

303 


CARRYING   OUT  THE   CITY    PLAN 

thousand  nine  hundred  and  five;  or  the  provisions  of 
an  act,  entitled  "An  act  to  preserve  the  purity  of  the 
waters  of  the  State,  for  the  protection  of  the  pubHc 
health,"  approved  the  twenty-second  day  of  April,  one 
thousand  nine  hundred  and  five. 

Section  8.  On  or  before  January  tenth  of  each  and 
every  year,  the  Commission  shall  prepare  an  estimate 
of  its  expenses  for  the  ensuing  year,  setting  forth  with 
as  much  detail  as  is  practicable  the  items  of  which  such 
estimate  is  composed;  and  shall  cause  the  amount 
of  its  expenses  so  estimated,  after  deducting  the  cash 
on  hand  and  the  unpaid  assessments,  to  be  assessed 
against  the  cities,  boroughs,  and  townships  within  the 
district,  in  proportion  to  their  respective  tax  dupli- 
cates. The  itemized  estimate  of  expenses  and  a  state- 
ment of  the  rate  of  assessment  shall  be  spread  upon  the 
minutes  of  the  Commission,  which  shall  be  kept  open 
at  all  times  for  public  inspection.  Each  and  every  as- 
sessment, when  certified  by  the  chairman  and  secretary 
of  the  Commission,  shall  constitute  a  charge  on  the 
treasury  of  the  respective  city,  borough,  and  township, 
and  its  immediate  payment  shall  be  at  once  provided 
for.  The  Commission  shall  have  power  to  secure 
payment  of  the  assessments  by  suits  of  mandamus,  or 
otherwise:  Provided,  That  the  rate  of  assessment  shall 
not  exceed  one-tenth  of  one  mill. 

Approved — The  23d  day  of  May,  A.  D.  1913. 

JOHN  K.  TENER. 

The  following  is  a  true  and  correct  copy  of  the  Act 
of  the  General  Assembly  No.  226. 

Robert  McAfee, 
Secretary  of  the  Commonwealth. 


304 


LEGISLATION    AND   DECISIONS 

9 

Laws  of   Pennsylvania.    General  Assembly 

No.  4$6,  of  191 3 

AN  ACT  to  amend  an  act,  entitled  "An  act  creating  an  art 
jury  for  cities  of  the  first  class,  and  prescribing  its  powers 
and  duties,"  approved  the  twenty-fifth  day  of  May,  Anno 
Domini  one  thousand  nine  hundred  and  seven. 

Section  i.  Be  it  enacted,  &c.,  That  section  three 
of  an  act,  entitled  "An  act  creating  an  art  jury  for 
cities  of  the  first  class,  and  prescribing  its  powers  and 
duties,"  approved  the  twenty-fifth  day  of  May,  one 
thousand  nine  hundred  and  seven,  which  reads  as 
follows: — 

"Section  3.  The  members  of  the  jury  shall  serve 
without  compensation;  and  from  their  own  number 
shall  elect  a  president  and  secretary,  to  serve  for  one 
year,  and  until  their  successors  are  elected.  The  jury 
shall  have  power  to  adopt  its  own  rules  of  procedure 
and  to  prescribe  regulations  for  the  submission  to  it  of 
all  matters  within  its  jurisdiction.  Five  members  shall 
constitute  a  quorum.  The  councils  of  said  city  shall, 
by  ordinance,  provide  for  the  necessary  expenses  of 
the  jury,  including  the  salaries  of  stub  clerk  or  clerks 
as  may  he  required  and  appointed  by  tbe  mayor  of  said 
cities, "  is  hereby  amended  so  that  it  shall  read : — 

Section  3.  The  members  of  the  jury  shall  serve 
without  compensation;  and  from  their  own  number 
shall  elect  a  president  and  vice-president,  to  serve  for 
one  year,  and  until  their  successors  are  elected.  The 
jury  shall  have  power  to  adopt  its  own  rules  of  proced- 
ure and  to  prescribe  regulations  for  the  submission 
to  it  of  all  matters  within  its  jurisdiction.  Five  mem- 
bers shall  constitute  a  quorum.  Tbe  jury  sball  have 
power  to  employ  a  secretary,  and  such  clerks,  stenog- 
31  305 


CARRYING   OUT   THE   CITY    PLAN 

raphers  and  other  assistants  as  it  may  require.  All 
employees  oj  the  jury  shall  he  exempt  from  the  provisions 
oj  the  act  to  regulate  and  improve  the  civil  service  of  the 
cities  of  the  first  class,  approved  March  fifth,  one  thousand 
nine  hundred  and  six.  The  councils  of  said  city  shall, 
by  ordinance,  provide  for  the  necessary  expense  of  the 
jury,  including  the  salaries  of  its  employees. 

Section  2.  That  said  act  is  hereby  further  amended 
by  adding  the  following: — 

Section  7.  No  construction  or  erection,  in  a  city  of 
the  first  class,  of  any  building,  bridge  or  its  approaches, 
arch,  gate,  fence,  or  other  structure  or  fixture,  which 
is  to  be  paid  for,  either  wholly  or  in  part,  by  appro- 
priation from  the  city  treasury,  or  other  public  funds, 
or  for  which  the  city,  or  any  other  public  authority, 
is  to  furnish  a  site,  shall  be  begun,  unless  the  design  and 
proposed  location  thereof  shall  have  been  submitted 
to  the  jury,  at  least  sixty  days  before  the  final  approval 
thereof,  by  the  officer  or  other  person  having  authority 
to  contract  therefor.  The  approval  of  the  jury  shall 
also  be  required  in  respect  to  all  structures  or  fixtures 
belonging  to  any  person  or  corporation,  which  shall  be 
erected  upon,  or  extend  over,  any  highway,  stream,  lake, 
square,  park  or  other  public  place,  within  the  city, 
except  as  provided  in  section  six  of  this  act.  In  deeds 
for  land,  made  by  any  city  of  the  first  class,  restrictions 
may  be  imposed  requiring  that  the  design  and  location 
of  structures  to  be  altered  or  erected  thereon  shall  be 
first  approved  by  the  art  jury  of  such  city.  Nothing 
requiring  the  approval  of  the  jury  shall  be  erected,  or 
changed  in  design  or  location,  without  its  approval. 
If  the  jury  fails  to  act  upon  any  matter  submitted  to 
it  within  sixty  days  after  such  submission  its  approval 
of  the  matter  submitted  shall  be  presumed. 

306 


LEGISLATION    AND    DECISIONS 

Approved — The  24th  day  of  July,  A.  D.  191 3, 

JOHN  K.  TENER. 
The  foregoing  is  a  true  and  correct  copy  of  the  Act 
of  the  General  Assembly,  No.  456. 

Robert  McAfee, 
Secretary  of  the  Commonwealth. 


307 


APPENDIX  B 

EXTRACTS  FROM   REPORT  ON  ENGLISH 
AND  CONTINENTAL  SYSTEMS  OF  TAK- 
ING LAND  FOR  PUBLIC  PURPOSES 

From  Massachusetts  Documents,  1904.     House  No. 
288  of  1904  and  House  No.  1096  of  1904 

THE  REPORT  OF  COMMITTEE 

It  has  clearly  appeared,  from  the  evidence  submitted 
to  us,  that  the  present  system  of  laying  out  new  streets 
or  widening  or  altering  existing  ones,  under  which  only 
the  land  actually  required  for  the  street  is  taken,  is, 
especially  in  those  parts  of  cities  which  are  covered 
with  existing  buildings,  productive  of  serious  public 
disadvantages;  and  a  brief  consideration  of  the  matter 
is  sufficient  to  show  that  this  difficulty  is  inherent  in 
the  system  itself,  and  must  persist  unless  some  modifica- 
tion of  that  system  can  be  devised. 

The  land  abutting  on  any  existing  street  is  divided 
and  arranged  in  lots,  which,  as  well  as  the  circumstances 
have  admitted,  are  adapted  to  the  street  in  its  present 
condition,  and  the  buildings  thereon  are  constructed  in 
conformity  therewith.  Any  widening  of  the  street  not 
only  destroys  the  existing  buildings,  but,  by  reducing 
the  size  of  the  abutting  lots,  leaves  the  residues  or 
remnants  of  many  of  them  of  such  shape  and  size  as 
to  be  entirely  unsuited  for  the  erection  of  proper  build- 
ings, unless  and  until  these  remnants  have  been  united 
with  the  adjoining  properties,  generally  with  those  in 
the  rear,  which  are  thus  enabled  to  extend  out  to  the 
new  street  lines. 

308 


ENGLISH    AND   CONTINENTAL    SYSTEMS 

The  same  condition  is  found,  and  frequently  even  to 
a  greater  extent,  when  a  new  thoroughfare  is  laid  out 
through  existing  blocks  covered  with  buildings. 

Hence,  when  an  existing  street  is  widened  or  a  new 
thoroughfare  is  laid  out  under  the  present  system,  the 
lots  on  one  or  both  sides  of  the  new  or  widened  street 
are  left  in  such  condition  that,  until  a  rearrangement 
can  be  made,  no  suitable  buildings  can  be  erected 
thereon,  and  the  public  benefit  to  be  derived  from  the 
improvement  is  in  great  measure  lost. 

The  street  may  be  valuable  as  a  thoroughfare  or  as 
one  for  through  traffic,  but  not  for  either  business  or 
residence  purposes;  and  striking  instances  of  this  have 
been  presented  to  the  committee  in  connection  with 
street  improvements  in  the  city  of  Boston. 

Not  only  is  such  a  situation  a  great  disadvantage  to 
the  city,  in  hindering  and  sometimes  preventing  its 
proper  development,  but  it  will  easily  be  seen  that  this 
state  of  affairs  renders  the  collection  of  betterment 
assessments  extremely  difficult,  since  the  benefit  to 
the  surrounding  property,  which  should  accrue  from 
the  improvement,  is  actually  not  received  until  these 
residues  or  remnants  have  been  united  with  the  ad- 
joining lots, — a  process  which,  under  the  present  system, 
may  take  years. 

It  often  happens  that  the  owners  of  these  remnants, 
desirous  of  deriving  some  income  therefrom  in  the 
meanwhile,  erect  thereon  temporary  structures,  un- 
suited  for  proper  habitation  or  occupancy;  and  such 
structures  are  too  frequently  made  intentionally  ob- 
jectionable, both  in  appearance  and  in  the  character 
of  their  occupancy,  for  the  purpose  of  compelling  the 
purchase  of  such  remnants  at  exorbitant  prices;   with 

309 


CARRYING   OUT  THE   CITY    PLAN 

the  result  that  a  new  thoroughfare,  which  should  be  an 
ornament  to  the  city,  is  frequently  for  a  long  period 
after  its  construction  disfigured  by  unsightly  and  un- 
wholesome structures,  to  the  positive  detriment  of  the 
public  interests.  These  results,  which  seem  inevitable 
under  the  present  system,  may  operate  to  prevent  the 
undertaking  of  much-needed  street  improvements. 

Furthermore,  it  is  believed  that  the  taking  of  whole 
estates,  instead  of  taking  the  greater  part  and  leaving 
an  undesirable  remnant,  would  not  materially  increase 
the  initial  expense  of  the  undertaking;  inasmuch  as  a 
city  which  takes,  under  the  present  system,  so  much  of 
an  estate  as  to  leave  the  remainder  unsuited  for  build- 
ing purposes,  is  often  obliged  to  pay  for  the  value  of 
the  part  taken,  and  for  the  damages  to  the  remaining 
part  practically  as  much  as  it  would  be  obliged  to  pay 
for  the  whole  estate. 

What  has  been  said  above  indicates  the  public  con- 
siderations which  render  a  change  in  the  existing  system 
desirable. 

There  is  also,  however,  another  side  to  the  question, 
viz.,  that  of  the  private  owner,  the  consideration  of 
which  appears  to  point  to  the  same  conclusion.  It 
frequently  happens  that  an  owner,  the  greater  part  of 
whose  estate  is  necessarily  taken  for  a  public  work, 
would  prefer  not  to  be  left  with  the  remnant  on  his 
hands,  and  if  an  opportunity  were  offered,  would  vol- 
untarily request  the  city  to  take  the  whole  estate. 
Many  people  recognize  that  there  is  less  opportunity 
for  differences  of  opinion  upon  the  question  of  the 
market  value  of  a  whole  estate  than  over  the  more 
complicated  question  of  the  value  of  the  portion  which 

310 


ENGLISH    AND   CONTINENTAL   SYSTEMS 

has  been  taken,  and  the  damages  to  the  remainder  by 
reason  of  such  taking;  and  hence  a  system  under  which 
the  city  could  acquire  the  whole  estate  would  be  pro- 
ductive of  greater  ease  in  the  settlement  of  damages, 
and  less  likelihood  of  litigation  over  the  question  in- 
volved therein. 

This  right  of  the  private  owner  to  require  the  taking 
of  the  whole  estate,  when  the  residue,  after  deducting 
what  is  actually  needed  for  the  public  work,  is  unsuited 
for  the  erection  of  appropriate  buildings  or  is  reduced 
below  a  certain  area,  is  almost  universally  recognized 
both  in  England  and  on  the  continent  of  Europe.  It 
has  also  received  recognition  in  this  State,  in  chapter 
159  in  the  Acts  of  1867,  relating  to  the  widening  of 
Oliver  Street  in  the  city  of  Boston,  which  act,  after 
empowering  the  city  to  assess  the  cost  of  the  improve- 
ment upon  the  abutting  estates,  provided  that  any 
owner,  part  of  whose  land  was  taken,  might  before  the 
assessment  elect  to  surrender  his  whole  estate  to  the 
city,  which  should  pay  therefor  its  full  value  as  it  was 
before  the  improvement  was  made,  and  should  have  the 
right  to  resell  the  portion  not  required  for  the  new 
street. 

The  constitutionality  of  this  act  was  upheld  in  the 
case  of  Dorgan  vs.  Boston,  12  Allen,  223. 

With  regard  to  the  acquirement  by  compulsory  tak- 
ing of  land  beyond  the  limits  of  a  given  public  work,  we 
find  that  two  different  systems  have  prevailed: — 

I.  The  taking,  in  addition  to  the  land  actually  re- 
quired for  the  public  work,  of  all  the  property  within 
certain  bounds  in  the  neighborhood  of  the  proposed 
work;  the  rearranging  of  the  lot  lines  of  the  property 
so  acquired;  and  the  disposal  of  this  property  by  sale 
or  lease  for  the  benefit  of  the  city. 

311 


CARRYING   OUT  THE   CITY    PLAN 

2.  The  taking,  in  addition  to  the  land  actually  re- 
quired for  the  public  work,  of  such  residues  or  remnants 
of  lots  only  which,  in  consequence  of  the  taking  for  the 
public  work,  will  be  left  of  such  shape  and  size  as  to  be 
unsuited  for  the  erection  of  proper  buildings;  and  also 
of  such  portions  of  the  adjoining  properties  as  it  may, 
in  consequence  of  the  refusal  of  their  owners  to  pur- 
chase these  remnants,  be  necessary  to  acquire,  in  order 
to  make  proper  building  lots  abutting  on  the  proposed 
street. 

In  favor  of  the  first  system,  it  has  been  urged  that, 
in  consequence  of  the  carrying  out  of  the  proposed 
public  work,  there  will  be  an  increase  in  value  of  the 
surrounding  property,  caused  by  no  act  of  its  owner, 
but  entirely  by  the  act  of  the  public  body,  and  at  the 
public  expense;  that  it  is  inequitable  that  such  in- 
crease in  value  should  not  accrue  to  the  public,  to  the 
expenditure  of  whose  money  it  is  solely  due;  that  the 
method  of  acquiring  the  abutting  property  in  the 
neighborhood  is  the  best  method  of  securing  such  benefit 
to  the  public;  that  it  is  far  simpler  and  more  equitable 
than  any  system  for  the  collection  of  betterments;  and 
that,  if  the  owners  of  the  abutting  property  are  paid 
its  full  value  as  it  was  before  the  improvement  took 
place,  they  have  no  cause  to  complain. 

This  is  the  system  which,  in  substance,  has  been 
adopted  for  important  street  improvements  in  many 
cities  of  Great  Britain,  Belgium,  Switzerland  and  Italy 
and  has,  we  are  informed,  been  on  the  whole  successful 
in  its  operation,  and  is  believed  in  certain  cases  to  have 
materially  reduced  the  cost  of  public  improvements. 

As  against  this  system  it  is  urged  that  the  State 
ought  not  to  dispossess  the  private  owner  of  his  prop- 

312 


ENGLISH    AND   CONTINENTAL   SYSTEMS 

erty  simply  in  order  that  the  public  work  may  be 
carried  on  at  less  cost,  through  resale  of  the  property 
so  acquired;  that  the  expense  of  public  works  should 
be  met  by  taxation,  and  not  by  the  taking  of  private 
property  for  no  other  purpose  than  to  benefit  the  public 
exchequer  by  its  re-sale;  that  the  power  to  take  prop- 
erty for  such  purposes  as  is  contemplated  by  the  first 
system  is  practically  a  power  to  enter  into  a  land 
speculation,  which  may  result  disastrously. 

In  the  case  of  our  cities,  there  is  the  further  objection 
that  the  adopting  of  such  a  system  might  easily  carry 
the  initial  cost  of  an  undertaking  beyond  the  debt  limit 
of  the  municipality. 

in  support  of  the  second  system,  it  is  urged  that  the 
ends  of  public  necessity  and  convenience,  for  which 
private  property  may  properly  be  taken,  can  all  be 
accomplished  by  limiting  the  taking,  in  addition  to 
the  land  actually  required  for  the  public  work,  to  such 
remainders  of  lots  as  are  by  themselves  unsuited  for 
proper  building  purposes,  and  by  uniting  them  to  the 
adjoining  properties,  compulsorily,  if  necessary;  and 
that  the  right  to  take  private  property  should  not  be 
extended  beyond  these  salutary  limits. 

Such  is  the  system  which,  originally  established  for 
the  city  of  Paris,  has  now  been  extended  to  many  of 
the  other  important  cities  of  France,  and  under  which 
many  of  their  great  improvements  have  been  carried 
out;  and  such  a  system  should,  it  would  seem,  if  fairly 
and  judiciously  applied,  be  ample  to  our  needs. 

In  the  draft  of  an  act  herewith  submitted  we  have, 
in  substance,  adopted  this  plan,  and  believe  that  it 
will  be  time  enough  to  consider  adopting  a  more  com- 
prehensive scheme  if  the  plan  proposed  shall,  after  a 
fair  trial,  be  found  insufficient  to  our  needs. 

313 


CARRYING   OUT   THE    CITY    PLAN 

It  would  appear  that,  in  order  to  give  such  a  system 
its  full  value  and  effect,  its  operation  should  be  ex- 
tended to  parcels  of  land  comprised  within  the  limits 
of  streets  which  are  discontinued  in  consequence  of 
the  laying  out  of  new  streets,  so  that  such  parcels 
could  be  united  to  the  land  abutting  thereon. 

This  has  been  found  to  be  advisable  in  the  practical 
application  of  the  law  in  France;  and  in  the  plan  for 
such  a  law,  herewith  submitted,  we  have  attempted 
to  make  such  additional  provision. 

With  regard  to  the  provisions  as  to  taking  the  land 
of  an  adjoining  owner  who  does  not  accept  the  city's 
offer  to  sell  to  him  the  parcel  which  the  city  has  ac- 
quired outside  of  the  limits  of  the  proposed  public 
work,  it  should  be  added  that  in  our  opinion  such  tak- 
ings would  in  practice  be  of  quite  rare  occurrence.  Such 
owners  are  usually  desirous  of  acquiring  parcels  which 
give  them  access  on  new  or  widened  highways,  if  this 
can  be  done  at  fair  prices,  but  are  unwilling  to  pay  the 
exorbitant  prices  which  are  often  asked  for  such  parcels. 
As  the  very  fact  that  a  residue  or  remnant  of  a  lot  had 
under  the  proposed  act  been  acquired  by  the  city  would 
show  that  it  had  been  adjudged  that  the  remnant  was 
by  itself  unsuited  for  the  erection  of  buildings,  the  only 
uses  that  could  consistently  be  made  of  it  would  either 
be  to  leave  it  open,  thus  destroying  the  utility  of  much 
of  the  street  frontage,  or  to  unite  it  with  the  adjoining 
property ;  and,  were  the  owner  of  the  adjoining  property 
to  feel  that  the  only  possible  courses  open  to  the  city 
were  either  to  leave  the  lot  vacant  or  to  sell  it  to  him, 
he  probably  would  offer  but  a  nominal  sum  for  it. 

The  purpose  of  these  provisions,   therefore,   is  to 

314 


ENGLISH    AND   CONTINENTAL    SYSTEMS 

enable  the  city  to  receive  fair  prices  for  these  remnants, 
and  to  control  the  character  of  their  development. 

We  have  been  urged  to  consider,  and  have  considered, 
the  desirability  of  insisting  on  certain  architectural 
requirements,  to  ensure  greater  symmetry  and  harmony 
in  the  constructions  which  front  on  and  frame  our 
principal  avenues.  It  has  seemed  to  us  that  such 
requirements  could  not  well  be  embodied  in  such  an 
act  as  we  have  submitted,  and  were  probably  beyond 
the  scope  of  our  mandate.  We  have,  however,  pro- 
vided that,  in  disposing  of  any  land  acquired  outside 
of  the  lines  of  the  new  street,  the  city  might  impose 
restrictions  thereon;  and  it  is  our  expectation  that  in 
framing  those  restrictions  due  regard  would  be  had  to 
ensuring  the  architectural  symmetry  of  the  new  street. 

It  would,  in  our  opinion,  often  be  of  great  benefit  to 
the  city  to  impose  such  restrictions  for  a  limited  term  of 
years  upon  all  property  abutting  on  a  new  or  widened 
street;  and  this  might  be  done,  whether  any  portions 
of  such  property  were  acquired  by  the  city  or  not;  in 
other  words,  even  were  the  street  to  be  laid  out  under 
the  present  highway  acts.  While  it  might  not  be 
desirable  to  attempt  to  embody  the  details  of  such 
restrictions  in  a  general  act,  the  power  to  impose  such 
reasonable  restrictions  as  should  be  found  necessary 
to  ensure  the  architectural  symmetry  of  the  new  street 
might  be  conferred  by  a  general  act,  containing  pro- 
visions for  the  payment  of  the  damages,  if  any,  result- 
ing from  the  exercise  of  such  powers. 

It  should  be  noted  that  this  question  has  been  suc- 
cessfully dealt  with  in  connection  with  the  new  streets 
of  London,  by  requiring  that  the  facade  plans  and 
elevations  of  the  new  buildings  to  be  erected  thereon 

315 


CARRYING   OUT   THE   CITY    PLAN 

should  be  submitted  to  the  approval  of  the  municipal 
authorities,  which  approval,  however,  is  not  to  be 
"unreasonably  withheld";  and  providing  for  a  decision 
on  the  plans  by  an  umpire,  viz.,  an  architect  selected 
by  the  president  of  the  Royal  Institute  of  Architects, 
in  case  the  city  and  the  private  owners  failed  to  agree. 

The  question  of  the  constitutionality  of  the  proposed 
enactment  has  of  course  presented  itself,  and  deserves 
careful  consideration.  The  committee  is,  however, 
of  the  opinion  that  it  was  not  the  intention  of  the 
Legislature,  in  passing  the  resolve  under  which  the 
committee  was  appointed,  that  the  committee  should 
attempt  to  advise  the  Legislature  on  this  important 
question  of  constitutional  law.  The  supreme  judicial 
court  is  made  by  the  constitution  (chapter  111,  article 
2)  the  adviser  of  the  Legislature  on  such  questions,  and 
either  branch  of  the  Legislature  is  given  authority  to 
require  the  opinion  of  the  justices  of  that  court  thereon. 

It  seems,  however,  proper  to  direct  the  attention 
of  the  Legislature  to  the  fact  that  a  law  which  should 
authorize  a  municipality  to  take  the  whole  of  those  lots, 
so  much  of  which  is  actually  required  for  the  public 
work  that  the  remainder  will  not  be  of  such  size  or 
shape  as  to  be  suitable  for  the  erection  of  proper  or 
wholesome  buildings,  would  not  be  open  to  such  serious 
or  grave  constitutional  objections  as  one  which,  purely 
for  the  purpose  of  effecting  a  saving  in  the  cost  of 
carrying  out  a  given  public  work,  should  authorize 
a  municipality  to  take  private  property  to  a  much 
greater  extent  than  is  needed  for  the  work,  and,  by 
sale  of  the  surplus,  to  receive  the  benefit  of  the  increase 
in  value  given  to  that  surplus  by  the  public  work  in 
question. 

316 


ENGLISH    AND    CONTINENTAL    SYSTEMS 

The  taking  of  the  whole  of  those  estates  the  remnants 
of  which  would  not  be  suited  for  the  erection  of  proper 
buildings  may  well  be  deemed  a  taking  for  those  public 
uses  for  which  building  regulations  and  those  limiting 
the  height  of  buildings  on  public  areas  have  been  up- 
held. 

Furthermore,  the  supreme  court  of  this  State,  in 
the  case  of  the  Copley  Square  restrictions  (Attorney 
General  vs.  Williams,  174  Mass.  476,  478),  has  laid 
down  the  principle  that  "the  uses  which  should  be 
deemed  public  in  reference  to  the  right  of  the  Legislature 
to  compel  an  individual  to  part  with  his  property  for  a 
compensation,  and  to  authorize  or  direct  taxation  to 
pay  for  it,  are  being  enlarged  and  extended  with  the 
progress  of  the  people  in  education  and  refinement. 
Many  things  which  a  century  ago  were  luxuries  or  were 
altogether  unknown  have  now  become  necessaries.'* 
And  these  principles  are  widely  recognized  today. 

The  union  of  such  remnants  or  remainders  to  the 
adjoining  properties,  either  by  their  sale  to  the  owners 
of  such  properties  or  by  the  taking  of  so  much  of  such 
properties  as  when  added  to  such  remainders  will  make 
lots  which  are  suitable  for  the  erection  of  proper  or 
wholesome  buildings,  would  seem  to  be  essential,  if  the 
public  ends  for  which  such  remainders  are  taken  are 
to  be  accomplished;  and  the  right  to  authorize  such 
takings  of  adjoining  properties  would  seem  to  follow, 
if  the  taking  of  the  remnants  is  considered  a  taking  for 
a  public  use. 

There  are  doubtless  cases  in  which  the  Legislature 
might  authorize  the  taking  of  the  whole  of  the  land  com- 
prised within  a  certain  area,  and  its  subsequent  resale. 
It  seems  to  be  clear  that  the  right  exists,  whenever  such 

317 


CARRYING   OUT   THE    CITY    PLAN 

a  course  is  desirable  in  order  to  abate  a  nuisance  or 
remedy  conditions  inimical  to  public  health;  and  that 
the  Legislature  may  authorize  the  municipality,  after 
having  abated  the  nuisance  or  remedied  such  condi- 
tions, to  resell  the  whole  or  any  part  of  the  property 
as  acquired.  This  power  has  been  frequently  exercised, 
the  most  notable  instance  perhaps  having  been  chapter 
308  of  the  Acts  of  1867,  relating  to  the  Church  Street 
district  in  Boston,  the  constitutionality  of  which  enact- 
ment was  upheld  in  the  case  of  Dingley  vs.  Boston,  100 
Mass.  554. 

There  may  be  other  cases  in  which  such  extended 
takings  would  be  upheld,  but,  for  the  purposes  of  the 
legislation  which  we  have  recommended,  the  considera- 
tion of  such  cases  would  not  seem  to  be  necessary. 

MUNICIPAL    REAL    ESTATE    OPERATIONS    IN    CONNECTION 
WITH  STREET  IMPROVEMENTS  IN  PARIS  AND  LONDON, 

House  Doc.  288  (pp.  53-56) 

The  experience  of  Paris  and  London  teaches  that  it  is 
unwise  for  a  city  to  attempt  to  recover  a  part  of  the 
cost  of  street  improvements  by  taking  more  land  than  is 
required  for  the  streets  themselves,  with  a  view  to  in- 
tercepting the  increases  in  value  which  the  improve- 
ments may  give  to  the  adjoining  land.  In  this  respect 
the  experience  of  the  provincial  towns  of  England  has 
not  differed  materially  from  that  of  London  and  Paris. 

Experience  teaches  that,  while  the  effect  of  street 
improvements  upon  land  values  often  is  uncertain, 
there  is,  upon  the  whole,  an  increase  of  values  that  would 
lessen  materially  the  cost  of  street  improvements,  if 
cities  could  collect  that  increase  by  means  of  so-called 
"recoupment.'*     But  thus  far  "failure  of  administra- 

318 


ENGLISH    AND   CONTINENTAL    SYSTEMS 

tion*'  has  defeated  the  efforts  of  cities  to  collect  the  so- 
called  unearned  increment  arising  from  street  improve- 
ments. 

That  failure  of  administration  has  resulted  from 
the  persistent  failure  of  public  opinion  to  correct  the 
practice  of  juries  of  giving  awards  "contrary  to  the 
facts  and  the  law"  to  the  persons  whose  lands  are  taken 
for  public  use;  and  from  the  persistent  failure  of  the 
Legislature  to  correct  the  obvious  shortcomings  of  the 
law.  For  this  failure  of  public  opinion  and  of  the  Leg- 
islature there  are  various  reasons.  In  the  first  place, 
it  has  been  entirely  impossible  to  overcome  the  public 
sympathy  with  the  private  individual  against  whom 
the  city  was  proceeding.  That  sympathy  is  based 
\argely  upon  the  notion,  ineradicable  from  the  mind  of 
the  average  citizen,  that  the  city,  like  the  State,  has 
large  resources  upon  which  it  can  draw,  and  which  it 
can  replenish  without  in  any  way  affecting  the  citizen. 
This  sympathy  with  the  individual  and  this  optimism 
as  to  the  city's  resources  acted  with  all  the  more  free- 
dom from  check,  since  the  laws  which  authorized  the 
cities  to  go  into  real  estate  speculations  for  the  purpose 
of  recovering  a  part  of  the  cost  of  street  improvements 
were  not  enacted  in  response  to  any  general  or  com- 
pelling conviction  of  the  body  of  the  citizens,  that 
the  cost  of  street  improvements  must  be  reduced.  The 
average  man  takes  no  permanent  interest  in  the  ques- 
tion of  the  cost  of  public  improvements;  and  laws  of  the 
kind  here  discussed  are  enacted  only  in  consequence 
of  the  activity  of  a  small  body  of  citizens,  >vho  appre- 
ciate keenly  the  necessity  of  husbanding  the  city's  re- 
sources. When  such  laws,  which  have  been  enacted 
without  the  support  of  an  intelligent  and  compelling 
public  spirit,  come  to  be  administered  by  the  average 

319 


CARRYING   OUT   THE    CITY    PLAN 

juror,  the  city's  interests  inevitably  are  lost  sight  of, 
in  the  desire  to  do  ample  justice  to  the  individual  whose 
property  the  city  takes  by  compulsory  powers. 

Turning  next  to  the  question  whether  the  cities 
whose  operations  have  been  examined  have  been  able 
to  sell  to  the  best  advantage  the  lands  acquired,  the 
answer  once  more  is  in  the  negative.  Baron  Hauss- 
mann,  summing  up  his  vast  experience  with  city  ac- 
tivity and  private  activity  in  Paris  in  1852  to  1869, 
said  that  private  enterprise  had  innumerable  ways  of 
nursing  and  developing  real  estate  that  the  city  neither 
could  invent  nor  imitate. 

In  conclusion,  it  may  be  added  that  in  Paris  there 
has  been  since  1876  an  exceedingly  intelligent  minority 
which  has  held  that  the  city  should  not  itself  execute 
any  more  street  improvements,  but  should  leave  such 
operations  to  private  enterprise,  subsidizing  the  latter 
for  that  purpose. 

In  London,  the  Metropolitan  Board  of  Works  was 
succeeded  in  1889  by  the  London  County  Council. 
The  latter  body  in  1890  asked  Parliament  for  permis- 
sion to  supplement  the  practice  of  "recoupment"  by 
the  so-called  American  practice  of  assessing  a  better- 
ment tax  upon  property  enhanced  in  value  by  public 
improvements.  One  may,  perhaps,  go  farther,  and 
say  that  the  London  County  Council  was  ready  to 
place  its  main  reliance  upon  the  practice  of  assessing  a 
betterment  tax,  and  to  relegate  to  a  subsidiary  position 
the  practice  of  recoupment.  Be  that  as  it  may,  the 
London  County  Council,  from  1890  to  1898,  declined 
to  proceed  with  any  large  improvement  schemes,  be- 

320 


ENGLISH    AND   CONTINENTAL   SYSTEMS 

cause  Parliament  refused  to  give  it  power  to  employ 
the  betterment  system  as  extensively  as  it  desired  to 
employ  it.  In  1898,  or  1899,  Parliament  yielded,  and 
the  London  County  Council  proceeded  with  the  Strand 
improvement  scheme. 

REPORT  ON  THE   FRENCH   SYSTEM   FOR  TAKING   LAND  BY 

RIGHT   OF    EMINENT   DOMAIN.      HoUSC    DoC.    288, 

pp.  44-52 

In  order  to  appreciate  the  system  which  obtains  in 
France  for  taking  land  by  right  of  eminent  domain,  it 
should  be  understood  at  the  outset  that  the  initiative 
for  the  construction  of  public  works  is  rarely  taken  by 
the  local  deliberative  body,  the  municipal  council,  for 
instance,  but  almost  always  by  the  executive,  or,  as 
they  would  term  it,  the  administration,  the  head  of 
which  is  the  chief  of  the  State,  with  his  various  ministers, 
while  the  prefect  in  each  department  and  the  under 
prefects  and  other  officers  represent  the  lower  ranks 
of  the  administrative  hierarchy. 

This  fact  explains  why  the  preliminary  procedure, 
which  has  for  its  object  to  determine  with  careful  re- 
gard for  private  interests  the  exact  limits  of  the  land 
required  to  be  taken,  is,  even  when  deliberative  in 
character,  considered  a  part  of  executive  rather  than 
of  legislative  functions. 

Provisions  for  compulsory  taking  of  land  outside  the 
limits  of  the  proposed  public  work: — 

By  a  decree  of  March  26,  1852,  it  was  enacted  that: 
"In  any  plan  for  taking  land  for  widening,  relocating 
or  laying  out  streets  in  Paris,  the  administration  may 
include  the  whole  of  each  lot  affected,  whenever  it  shall 
consider  that  the  residue  will  not  be  of  such  size  or 
22  321 


<:arrying  out  the  city  plan 

shape  as  to  allow  the  erection  of  wholesome  construc- 
tions. It  may  also  include  in  the  taking  lots  outside 
of  the  street  lines,  whenever  it  is  necessary  to  acquire 
them  in  order  to  discontinue  former  public  streets 
which  have  been  deemed  useless.  The  portions  of  lots 
which  have  been  taken  outside  of  street  lines  and  which 
are  not  capable  of  receiving  wholesome  constructions 
shall  be  united  to  the  adjoining  properties  either  by 
agreement  or  by  the  taking  of  those  properties.'* 

In  order  to  include  in  the  taking  any  portion  of  a  lot 
outside  of  the  street  lines,  it  is  necessary,  whenever  this 
is  practicable,  that  it  should  be  included  in  the  plan 
submitted  to  the  preliminary  inquiry;  and  in  all  cases 
such  proposed  takings  must  be  shown  on  the  detailed 
plan  submitted  to  the  second  inquiry  above  referred 
to,  and  if  the  owners  opposed  the  taking,  and  since  1876, 
even  in  the  absence  of  opposition,  the  decree  which  de- 
termines the  limits  of  such  takings  is  rendered,  not  by 
the  prefect,  as  in  the  case  of  the  property  included  in 
the  street  lines,  but  by  the  council  of  State. 

The  provisions  of  law  for  uniting  these  portions  of 
lots  acquired  outside  of  the  street  lines  to  the  adjoining 
properties  contemplate  a  careful  appraisal  of  such  por- 
tion, to  determine  its  value  to  the  adjoining  owner 
under  all  the  circumstances  of  the  case,  the  offering  of 
it  to  such  owner  at  the  appraisal  value;  and  if  he  fails 
to  accept  the  offer  within  a  week  from  its  receipt,  the 
administration  may  proceed  to  take  his  property  for 
the  purpose  of  uniting  the  remnant  to  it,  and  then  re- 
selling the  whole. 

The  provisions  of  this  decree  of  March,  1852,  origi- 
nally passed  for  Paris  only,  have  since  been  applied  to 
most  of  the  important  cities  of  France. 

322 


ENGLISH    AND   CONTINENTAL   SYSTEMS 

Attention  should  be  called  to  the  fact  that  under  the 
provisions  of  the  law  of  April  13,  1850,  all  the  land 
within  fixed  limits  may  be  taken  whenever  required 
in  order  to  abate  a  nuisance,  or  in  the  interest  of  works 
for  the  improvement  of  the  public  health,  and  the  sur- 
plus, after  completion  of  the  works,  sold  at  public 
auction. 

It  is  stated,  however,  that  in  comparison  with  the 
law  of  March,  1852,  that  of  April  13,  1850,  has  been 
rarely  applied. 

The  law  of  Sept.  16,  1807,  contains  provisions  for 
the  assessment  of  betterments,  according  to  which  pri- 
vate property  which  has  received  a  marked  increase 
in  value  from  the  opening  of  new  streets  or  squares, 
the  construction  of  quais  and  other  public  works,  may 
be  assessed  a  betterment  to  the  amount  of  one-half  of 
such  increase  in  value;  but  this  can  only  be  done  by 
an  order  of  the  head  of  the  State,  passed  in  State  coun- 
cil. 

The  amount  of  the  tax  is  determined  by  a  special 
commission  formed  for  the  purpose. 

The  power  to  assess  such  tax  seems  rarely  to  have 
been  employed;  it  is  said  that  not  more  than  twenty 
instances  of  its  exercise  can  be  found  in  all  France  from 
the  passage  of  the  law  up  to  1886;  and,  although  for- 
merly applied  in  some  instances  to  cases  of  street  im- 
provements in  cities,  it  seems  for  the  last  fifty  years, 
or  since  the  enactment  of  March,  1852,  above  referred 
to,  to  have  been  employed  only  in  cases  where  the 
special  benefit  was  of  an  exceptional  character,  as  when 
arising  from  the  construction  of  levees,  dikes  or  a  series 
of  quais. 


323 


CARRYING   OUT  THE   CITY    PLAN 

House  Doc.  No.  1096,  Supplemental  Report  pp.  4-10 

The  effect  of  these  provisions  and  of  those  of  the 
French  law,  which  place  all  administrative  matters 
under  the  control  of  the  administrative  courts  of  which 
the  Council  of  State  is  the  highest,  and  remove  them 
from  the  jurisdiction  of  the  regular  courts,  is  to  make 
the  Council  of  State  practically  the  sole  judge  of  the 
extent  to  which  these  powers  should  be  exercised,  and 
of  the  size  of  the  remnants  which  may  be  taken,  and 
hence  the  extent  to  which  such  takings  may  be  made 
under  the  law  is  almost  entirely  dependent  on  the  at- 
titude of  the  Council  of  State. 

There  appears  to  be  no  question  that  at  present,  and 
indeed  for  many  years  past,  substantially  since  the 
establishment  of  the  present  Republic,  the  attitude  of 
the  Council  of  State  has  been  to  limit  as  far  as  possible 
the  application  of  the  law  which  authorizes  the  taking 
of  such  remnants,  and  to  permit  any  owner  who  de- 
sired to  retain  the  ownership  of  the  remnant  of  his 
estate  to  do  so,  provided  it  were  in  any  way  possible  to 
erect  on  such  remnant  a  building  which  would  comply 
with  the  requirements  of  the  building  law  regarding 
light  and  air. 

This  attitude  appears  to  be  taken  through  solicitude 
for  the  wishes  of  the  individual  owner,  and  to  a  theo- 
retical assumption  that,  as  takings  by  eminent  domain 
are  in  derogation  of  common  right,  they  should  be  re- 
stricted, as  far  as  possible,  and  is  doubtless  due  in  large 
measure  to  the  reaction  from  the  former  regime,  when 
private  and  personal  rights  were  subordinated  to  the 
wishes  of  the  administrative  government. 

The  contrast  between  the  position  now  taken  by  the 
Council  of  State  regarding  these  matters  and  that 

324 


ENGLISH   AND   CONTINENTAL   SYSTEMS 

taken  under  the  empire  may  be  gathered  from  a  com- 
parison of  the  size  of  the  remnants  the  taking  of  which 
was  formerly  authorized  by  the  Council  of  State,  and 
of  those  the  taking  of  which  it  now  refuses  to  authorize. 

In  1896  and  1897  there  was  constructed  that  portion 
of  the  Rue  Reaumur  connecting  the  Place  de  la  Bourse 
with  the  Boulevard  Sebastopol,  which  lies  between  the 
Place  de  la  Bourse  and  the  Rue  St.  Denis.  Although 
the  actual  taking  of  the  land  occurred  in  1894-95, 
shortly  before  the  construction,  the  decree  which  au- 
thorized the  taking  and  determined  its  limits  had  been 
made  thirty  years  before,  viz.,  in  August,  1864,  under 
the  second  empire,  and  that  decree  authorized  the 
taking  of  remnants  as  large,  in  some  instances,  as  5,000 
square  feet  in  area. 

These  remnants  were  resold  for  building  lots,  and  in 
some  cases  the  remnant,  which  had  been  taken  as  being 
too  small  to  allow  the  erection  of  a  wholesome  building 
thereon,  was  divided  into  two  lots,  each  of  which  was 
sold  by  itself  for  a  building  lot. 

In  contrast  with  this  somewhat  extralegal  method 
of  procedure,  should  be  set  the  following  example  of 
the  present  application  of  the  law. 

The  city  of  Paris  has  lately,  in  connection  with  the 
development  of  the  land  formerly  occupied  by  the 
Trousseau  Hospital,  found  it  necessary  to  construct 
some  new  streets,  the  laying  out  of  which  left  certain 
remnants  of  estates  which  the  city  desired  authority  to 
take. 

In  this  case  the  Council  of  State  refused  to  approve 
the  taking  of  those  remnants  whose  area  exceeded  650 
square  feet,  while  it  authorized  the  taking  of  those 
whose  area  was  less  than  this. 

325 


CARRYING   OUT  THE   CITY    PLAN 

These  two  instances  may  fairly  be  considered  as 
typical  of  the  difference  between  the  former  regime, 
under  which  the  takings  in  connection  with  street  im- 
provements were  often  made  without  regard  to  the 
fact  that  the  law  only  authorized  the  taking  of  those 
remnants  which  were  unsuited  for  building  purposes, 
and  the  present  regime,  where  the  application  of  that 
law  is  so  limited  as,  in  the  opinion  of  some,  to  defeat  in 
certain  cases  the  purpose  for  which  it  was  enacted,  viz., 
to  ensure  that  all  the  lots  abutting  on  the  new  street 
should  be  suited  to  the  erection  of  proper  buildings. 

It  is  important  to  note  that  in  the  case  last  mentioned 
(that  of  the  Hospital  Trousseau),  the  request  of  the 
city  for  authority  to  take  those  remnants  which  the 
Council  of  State  declined  to  authorize  it  to  take  did 
not  appear  to  have  been  made  for  the  purpose  of  se- 
curing the  profit  from  the  resale  of  those  remnants; 
nor  was  the  request  refused  because  it  was  thought  to 
have  been  so  prompted. 

That  purpose  was  neither  avowed  by  the  represen- 
tatives of  the  city,  nor  would  it  be  inferred  from  ex- 
amination of  the  plan,  nor  were  the  members  of  the 
Council  of  State  inclined  to  attribute  it  to  the  city  or 
to  its  representatives. 

The  difference  between  the  city  and  the  Council  of 
State  was  rather  one  of  opinion  as  to  the  size  of  the 
remnant  which  should  or  should  not  be  deemed  suitable 
for  building,  the  Council  being  inclined  to  place  the 
limit  of  size  lower  than  were  the  officials  of  the  city; 
and  it  seemed  probable  that  were  an  opportunity 
offered  to  the  officials  of  the  city  to  present  their  views 
on  this  matter  before  the  Council  of  State,  which  is  not 
done  under  the  present  practice,  the  standard  desired 
by  the  city  might  be  adopted. 

326 


ENGLISH    AND   CONTINENTAL    SYSTEMS 

However  this  may  be,  and  it  would  seem  that  in 
certain  cases  at  least  the  Hmit  of  the  size  of  a  remnant 
which  an  owner  should  be  permitted  to  retain  had  been 
placed  too  low,  there  appears  to  be  no  doubt  as  to  the 
general  consensus  of  opinion  today  among  those  most 
conversant  with  such  matters  in  Paris,  whether  mem- 
bers of  the  city  administration  or  of  the  Council  of 
State,  that  extended  takings  of  land  outside  of  the  lines 
of  proposed  new  streets  solely  for  the  purpose  of  se- 
curing for  the  city  the  profit  from  the  resale  of  the  land 
so  acquired  are  neither  proper  nor  desirable. 

The  increased  initial  expense  involved  in  such  takings 
was  an  important  reason  given  for  this  opinion,  and 
the  uncertain  length  of  time  required  for  the  disposal 
of  the  property  another.  The  taking  of  remnants 
properly  so  called,  that  is,  of  such  residues  of  lots  as 
were  by  themselves  unsuited  for  building  purposes, 
was  not  considered  as  open  either  to  these  or  to  the 
other  objections  urged  against  the  taking  of  land  solely 
for  the  purpose  of  resale. 

The  increased  expense  caused  by  taking  such  rem- 
nants was,  especially  where  the  land  had  been  built 
upon,  but  slight. 

In  any  event  the  land  taken  for  the  street  had  to  be 
paid  for,  and  where  part  of  a  building  was  taken  the 
city  was  invariably  obliged  to  pay  for  the  whole,  the 
damages  to  the  tenants  were  the  same  practically 
whether  the  whole  estate  or  only  a  part  was  taken,  and 
thus  the  sole  difference  in  expense  between  taking  the 
whole  estate  or  leaving  a  remnant  was  the  difference 
between  the  value  of  the  remnant  at  the  time  of  taking 
and  the  damages  caused  it  by  the  taking  for  the  street, 
which  must  be  paid  if  the  remnant  was  not  taken,  and 
this  difference  was  not  great. 

327 


CARRYING   OUT  THE   CITY    PLAN 

Furthermore,  such  remnants  were  found  to  be  readily 
salable,  the  adjoining  owner  almost  always  being  de- 
sirous of  securing  the  frontage  they  afforded  on  the 
new  street  and  ready  to  purchase  them  at  a  fair  price, 
which  more  than  compensated  for  the  increased  cost 
of  taking  them;  so  that  only  in  rare  instances  had  it 
been  necessary  to  have  recourse  to  the  power  of  taking 
the  adjoining  estate  for  the  purpose  of  completing  a 
remnant. 

It  seems  clear  that  much  of  the  effort  which  Paris 
has  made  to  reduce  the  expense  of  street  improve- 
ments by  taking  additional  land  in  the  hope  of  profiting 
by  its  resale  has  been  due  to  the  lack  of  a  satisfactory 
betterment  law,  and  now  that  the  attitude  of  the 
Council  of  State  is  opposed  to  further  takings  simply 
for  the  purpose  of  resale  the  attention  of  the  municipal 
authorities  is  more  and  more  directed  to  securing  a  sat- 
isfactory method  for  the  assessment  and  collection  of 
betterments. 

The  present  attitude  of  the  Council  of  State  as  to 
permitting  the  taking  of  land  outside  the  limits  of  the 
street  simply  for  the  purpose  of  profiting  by  its  resale 
has  had  a  marked  effect  on  the  proposals  made  to  the 
city  for  the  completion  of  the  Boulevard  Haussmann, 
to  which  reference  is  so  often  made. 

Until  the  fact  that  the  Council  of  State  would  no 
longer  permit  extended  takings  for  the  purpose  of 
profiting  by  the  resale  of  the  land  so  acquired  was  gen- 
erally understood,  the  proposals  made  to  the  city  con- 
templated that  in  addition  to  the  88,888  square  feet 
required  for  the  street  it  should  take  abutting  estates 
of  99,457  square  feet  in  area,  the  whole  at  an  expense 

328 


ENGLISH    AND   CONTINENTAL   SYSTEMS 

of  $10,000,000,  for  which  the  city  would  have  become 
Hable  in  the  hope  that  it  might  recoup  itself  by  the 
revenue  to  be  derived  from  long  leases  of  the  surplus 
land  and  from  its  resale  at  the  expiration  of  those  leases. 
The  city  was  either  to  advance  the  bulk  of  the  money 
required  for  the  new  buildings  to  be  erected  on  those 
lots  or  to  permit  them  to  be  mortgaged  for  that  purpose. 

If  the  expected  rents  were  realized  during  the  period 
anticipated,  the  burden  on  the  city  would  have  been 
little  or  nothing,  while  if  they  were  not,  the  city  might 
have  been  obliged  to  bear  the  burden  of  the  interest 
and  sinking  fund  charges  on  the  whole  jj  10,000,000, 
and  those  on  the  mortgage  also. 

It  being  now  recognized  that  such  a  taking  will  not 
be  permitted,  the  latest  proposition  made  to  the  city 
was  to  the  effect  that  the  owners  of  the  most  important 
of  the  abutting  estates  were  prepared  to  give  to  the 
city  50,783  square  feet  of  the  land  required  for  the 
street,  considerably  more  than  one-half,  provided  the 
city  would  build  the  street,  pay  the  damages  to  their 
tenants  and  release  them  from  any  betterment  assess- 
ment. 

The  expense  to  the  city  was  thus  reduced  from  $10,- 
000,000  to  about  $4,000,000  (the  tenants*  damages  in 
each  case  being  estimated  at  about  $2,000,000),  and 
though  all  expectation  of  profit  except  from  increased 
receipts  of  taxes  was  abandoned,  this  material  reduc- 
tion rendered  it  much  more  possible  for  the  city  to 
undertake  the  work;  and  were  an  assessment  of  better- 
ments to  be  made  on  those  estates  which  did  not  con- 
tribute to  the  street  the  expense  could  be  further  re- 
duced. 

In  what  has  been  said  above,  the  present  and  the 

329 


CARRYING   OUT  THE   CITY    PLAN 

past  attitude  of  the  authorities  of  Paris,  and  of  the 
Council  of  State,  toward  takings  of  land  outside  the 
limits  of  proposed  new  streets  solely  for  the  purpose 
of  securing  the  profit  from  the  resale  of  such  land  has 
been  considered;  but  it  must  not  be  inferred  therefrom 
that  the  only  purpose  for  which  extended  takings  of 
land  have  been  made  in  Paris  in  connection  with  street 
improvements  has  been  that  of  securing  the  profit 
from  the  resale  of  the  land  taken. 

There  are  many  cases  where  such  takings  have  been 
made  in  whole  or  in  part  for  the  purpose  of  improving 
the  sanitary  conditions  in  the  area  taken^  and  where 
the  best  method  of  securing  such  improvement  was  by 
the  razing  of  every  structure  in  the  area  to  be  improved 
and  the  rebuilding  of  that  area  according  to  modern 
requirements. 

Only  actual  acquaintance  with  the  conditions  which 
obtain  in  some  of  the  more  ancient  quarters  of  the  cities 
of  the  Continent  can  give  an  adequate  idea  of  how  es- 
sential such  improvement  was  and  in  many  cases  still  is, 
and  how  impossible  of  attainment  it  is  by  any  method 
short  of  the  total  destruction  of  all  the  buildings  within 
such  area. 

The  same  holds  true  frequently  of  small  groups  of 
buildings  on  the  line  of  or  in  the  neighborhood  of  a  pro- 
jected street  improvement. 

Where  such  a  case  presents  itself,  the  Council  of 
State  does  not  hesitate  today  to  authorize  the  taking  of 
all  the  land  and  buildings  in  the  area  to  be  improved  or 
of  the  groups  of  buildings,  the  demolition  of  which  is 
required  for  sanitary  reasons,  and  of  the  land  on  which 
they  stand.  While  in  such  cases  whatever  is  realized 
from  the  sale  of  such  land  goes  in  reduction  of  the  cost 

330 


ENGLISH    AND   CONTINENTAL   SYSTEMS 

of  the  improvement,  the  taking  of  the  land  is  not  pri- 
marily made  for  the  purpose  of  effecting  that  saving, 
though  it  would  be  natural  for  the  authorities,  wherever 
such  a  saving  had  been  made,  to  lay  stress  upon  the 
fact  as  justifying  the  method  adopted. 

In  considering  the  extended  takings  which  have  been 
made  in  European  cities  it  is  important  in  each  case 
to  ascertain  whether  or  not  the  considerations  which 
prompted  the  taking  of  more  land  than  was  apparently 
required  for  the  proposed  new  streets  did  not  relate  pri- 
marily to  the  remedying  of  unsanitary  conditions,  as 
the  opportunity  which  their  laws  afford  of  combining 
in  one  taking  lands  required  for  street  purposes  and 
those  taken  to  remedy  conditions  inimical  to  public 
health  is  often  availed  of,  and  in  such  cases  the  actual 
importance  of  the  sanitary  considerations  does  not  al- 
ways clearly  appear  on  the  record. 

EXCESS  TAKING   IN    BRUSSELS,     HoUSe    DoC.    No.    IO96, 

pp.  10-16 

In  Belgium  since  1867  cities  have  been  permitted  to 
take  land  by  zones,  as  it  is  termed,  either  for  the  pur- 
pose of  improving  sanitary  conditions  or  of  improving 
the  appearance  of  the  city,  and  some  of  the  most  not- 
able instances  of  the  exercise  of  this  power  are  found  in 
Brussels,  to  satisfy  whose  needs  the  law  was  originally 
passed. 

No  limit  is  fixed  by  the  law  for  the  extent  of  these 
zones,  and  the  city  is  not  restricted  to  taking  land  within 
a  certain  distance  of  the  new  highway,  as  is  the  case  in 
the  Swiss  and  Italian  laws  for  instance,  but  may  take 
whatever  seems  advisable  in  order  to  accomplish  the 
purposes  for  which  the  taking  is  made;  but,  again,  the 
city  is  not  permitted  to  be  the  sole  judge  of  how  ex- 
tensive a  taking  shall  be  made. 

331 


CARRYING  OUT  THE   CITY    PLAN 

After  the  city  authorities  have  adopted  the  plan,  the 
matter  is  submitted  to  the  Council  of  the  Province, 
which  makes  a  separate  examination  of  the  question 
by  an  independent  commission,  and  after  both  the  city 
and  provincial  authorities  have  approved  the  plan,  a 
royal  decree,  generally  rendered  on  the  report  of  the 
Ministers  of  Public  Works  and  of  the  Interior,  is  neces- 
sary to  authorize  the  taking. 

It  is  evident  that  in  the  Belgian  law  two  matters  are 
united  which  with  us  have  usually  been  kept  entirely 
distinct,  viz.,  takings  in  the  interest  of  public  health 
and  takings  for  public  improvement,  in  the  sense  of  im- 
proving the  appearance  of  the  city;  and  a  brief  state- 
ment of  the  conditions  which  obtained  in  Brussels 
forty  years  ago  will  show  how  this  naturally  came  to 
pass.     (See  pp.  122  ff.  of  this  volume.) 

So  far  from  Brussels  having  concluded  by  reason  of 
her  trying  experience  that  the  taking  of  land  by  zones 
was  an  error,  it  is  stated  by  those  in  authority  that  since 
she  has  had  authority  to  take  land  in  this  way  she  has 
employed  no  other  method;  but,  as  has  already  been 
stated,  it  would  appear  that  the  objects  she  has  in 
view  in  her  takings,  viz.,  the  improvement  not  only  of 
her  highways  but  of  the  appearance  and  sanitary  con- 
ditions of  the  city,  can  be  attained  in  no  other  way. 

Other  cities  of  Belgium,  notably  Liege,  have  also 
employed  this  method  of  taking  by  zones,  and,  acting 
under  wiser  guidance  or  more  favorable  conditions, 
have  succeeded  in  carrying  out  their  improvements 
without  having  to  pass  through  the  period  of  "storm 
and  stress"  which  Brussels  experienced,  and  in  the  case 
of  Liege  especially  certain  improvements  carried  out 
by  this  method  have  shown  a  substantial  profit. 

332 


ENGLISH    AND   CONTINENTAL   SYSTEMS 

It  is  of  interest  to  note  in  this  connection  that  the 
power  of  taking  land  by  zones  conferred  on  the  cities  of 
Belgium  is  not  possessed  by  the  State,  one  reason  for 
this  distinction  being  that  the  approval  of  the  Pro- 
vincial Government  required  in  the  case  of  takings  by 
cities  affords  a  check  against  the  abuse  of  this  power 
which  would  be  lacking  in  the  case  of  the  State. 

As  a  result  of  this  situation,  the  State  has  requested 
the  city  of  Brussels  to  make  such  takings  on  a  large 
scale  in  the  vicinity  of  the  new  central  railway  station 
which  the  State  is  about  to  build  in  Brussels,  and  has 
made  a  contract  with  the  city  under  which  the  State 
agrees  to  advance  the  money  necessary  for  the  opera- 
tion and  to  assume  the  risk  of  any  loss  resulting  there- 
from. 

I  am  informed  that  Belgium  has  no  law  for  the  as- 
sessment of  betterments. 

Note  as  to  Certain  Differences  Regarding  Damages 
in  Case  of  Takings  by  Eminent  Domain 

In  France  in  the  case  of  takings  by  right  of  eminent 
domain  the  damages  are  assessed  by  a  jury,  in  Belgium, 
by  the  judges. 

In  France  it  is  not  the  practice  to  receive  the  testi- 
mony of  experts  regarding  the  value  of  the  land. 

(It  is  said  that  in  the  last  thirty  years  there  has  been 
but  one  case  in  Paris  in  which  such  testimony  was 
given.) 

In  Belgium  such  testimony  in  the  form  of  written  re- 
ports is  customarily  received. 

In  both  countries  the  awards  for  damages  to  land 
and  buildings,  i.  e.,  the  damages  awarded  to  the  owner, 


333 


CARRYING   OUT   THE   CITY    PLAN 

are  considered  by  the  city  authorities  to  be  somewhat 
in  excess  of  the  market  value,  but  not  greatly  so. 

The  law  of  each  country  gives  damages  to  tenants 
in  addition  to  the  value  of  the  land  and  buildings,  and 
permits  such  damages  to  be  given  for  loss  of  good-will, 
business  or  custom  consequent  on  being  obliged  to 
move  to  another  locality. 

It  is  in  connection  with  the  awards  of  damages  for 
this  latter  class  of  injury  that  complaint  as  to  excessive 
awards  is  made,  it  being  considered  that  the  juries  in 
the  one  country  and  the  judges  in  the  other  are  more 
likely  to  err  or  be  misled  regarding  the  damages  claimed 
for  loss  of  business  or  custom  than  as  to  those  which 
relate  to  the  value  of  land  or  buildings. 


334 


INDEX 


INDEX 


Acquisition  of  Land  by  Muni- 
ciPAUTiEs:  burden  on  tax 
payers,  22;  by  gift,  dedica- 
tion, or  devise,  3,  4;  by 
municipality,  limitations  of, 
in  United  States,  1-2, 14-15; 
equitable  distribution  of 
cost,  I,  22-51;  methods  of, 
i;  purchase  by  cities,  13-17; 
right  to,  i;  tax  payers  pro- 
tected, 17 

Administrative  Agencies  and 
Planning,  168-208 

Advertising:  condemnation 
costs,  25 

Advertising  Signs:  New  York 
court  decision  on,   1 51-15  2 

Amendments  to  State  Consti- 
tution: of  New  York,  248- 
249;  of  Mass.,  278;  of  Ohio, 
280;  of  Wisconsin,  279 

Appraisers' Hearings:  granted 
by  court  in  Minneapolis, 
27-28 

Art  Commission:  in  Greater 
New  York,  184 

Art  Jury:  power  of,  in  Phila- 
delphia, 184-185 

Assessment  Board:  determines 
area  for  special  benefit, 
90-91;  regulation  in  New 
York,  90 

Assessment  of  Benefit:  prac- 
tice of,  in  Massachusetts,  85 

23  337 


Assessments:  by  jury,  in  Kansas 
City,  71-72;  committee  ap- 
pointed in  Massachusetts  in 
1658,  58,  60;  court  decision 
in  Ohio,  62-64;  exemption 
of,  for  parks,  62;  expense 
of  street  openings  borne  by 
city,  87-88;  first  special  law 
in  United  States,  58;  gen- 
eral practice  of,  86-87; 
Greater  New  York  parks, 
67-68;  Kansas  City,  70; 
King's  Highway,  91;  laws 
in  Massachusetts,  64-65 ; 
legislation  for,  in  different 
states  by  dates,  59-60; 
methods  of,  for  street  wid- 
enings  in  New  York  City, 
87-88;  New  York  law  of 
1691,  58;  park  lands,  60; 
Pennsylvania  laws  of  1700, 
58-59;  policy  of  figuring  by 
front  foot,  57;  prior  to  1902 
in  New  York  City,  87-88; 
relative  taxation  on  park 
property  for,  61;  unfair 
features  of,  in  Boston,  97- 
98 

Assessors:  appointment  of,  in 
Minneapolis,  to  determine 
tax,  68-69 

Attorney  General  vs.  Henry 
B.  Williams,  1899:  174 
Mass.  476,  219-221 

Awards  of  Commissions:  in 
condemnation  cases,  reform 
needed  in  cases  of,  51 


INDEX 


Baltimore:  topographical  sur- 
vey commission  in,  182 

Belgixtk:  law  for  excess  taking 
in,  122-125;  street  system 
in  Brussels,  122-125 

Bill-boards,  161-165;  dangers 
from,  164;  decisions,  246- 
248;  increase  fire  hazards, 
164;  legislation  for,  19; 
license  fee  discrimination, 
162-163;  Missouri  provi- 
sions to  regulate,  162-165; 
opposition  to  ordinance  reg- 
ulating, 163;  regulations 
for,  as  nuisances,  164;  St. 
Louis  ordinance  for,  165; 
temporary  character  of,  165 

Board  of  Survey:  act  declared 
unconstitutional  in  Boston 
in  1902,  89-90 

Boards  of  Health:  jurisdic- 
tion of,  for  nuisances,  154- 
155;  Massachusetts,  practice 
of,  1 54-1 55 

Bonds:  for  land  acquirement, 
52-55;  issue  of,  for  land 
payments,  52-55;  provided 
by  legislature,  52-53 

Borrowing  Money:  limit  to 
city's  power,  in  Milwaukee, 
53 

Boston:  area  of  special  benefit 
in,  90;  assessment  law  un- 
fair, 97-98;  attitude  toward 
survey  board  in,  179;  bene- 
fits of  single  council  in,  189; 
board  of  survey  appointed 
in  1 89 1,  89;  board  of  survey 
in  1891,  177-179;  borrow- 
ing plan  in,  195;  condem- 
nation proceedings  in,  36; 
decision  against  board  of 
survey  in,  89-90;  exception 
to  special  assessment  rule, 
96;    height  of  buildings  on 


Copley  Square,  18,  19; 
one-way  streets,  success  of, 
204;  proceedings  for  street 
improvements  in,  37-38; 
special  assessments  prior 
to  1 89 1,  89;  street  com- 
missioners' awards,  37-38; 
street  commissioners  in,  36- 
38;  survey  act  unconstitu- 
tional in  1902,  89-90;  un- 
suitable land  remnants  after 
condemnation  proceedings 
in,  104 

Boulevard  Property:  restric- 
tions governing,  17-21 

Boulevards:  King's  Highway 
law  in  St.  Louis,  90-91; 
Missouri  ordinance  to  reg- 
ulate industries  on,  15^ 
160 

Building  Codes:  regulation  of, 
in  large  cities  of  United 
States,  143-144 

Building  Heights:  Massachu- 
setts acts,  218-219 

Building  Limitations,  police 
power,  140-149 

Building  Lines:  designated  in 
streets,  204;  establishing 
boulevards,  211 

Building  Regulations:  city 
of  Koln,  Germany,  an  ex- 
ample, 145;  for  dwellings, 
149-150;  German  illustra- 
tion of,  145-146;  in  Wash- 
ington, D.  C,  142;  limit- 
ations on  height  and  size, 
140-150;  New  York  deci- 
sions for,  142;  ordinances 
for,  140-144;  restrictions 
for  community  benefit,  138- 
140;  type  of  control  of, 
138-140 


338 


INDEX 


Brooklyn:  Furman  Street,  17 
Wendell  649.  1836,  243- 
244 

Building  Restrictions:  com- 
munity benefits  from,  138- 
140;  excess  taking  and, 
136-137 

Buildings  in  Parks:  not  true 
economy,  6 

Bureau  of  Surveys:  Phila- 
delphia district  surveyors, 
176-177 

Bureaus:  scope  of,  in  Greater 
New  York,  180-181 


California:  findings  of  com- 
mission in,  94-95;  pueblo 
lands  in,  16;  state  codes  of, 
40 

Central  Park:  assessment  on 
land  benefited  by,  65;  crea- 
tion of,  in  1853,  65;  land 
cost  of,  65 ;  ratio  of  increase 
of  land  value  of,  66-67 

Charleston,  South  Carolina: 
city  hall  on  park  site,  7 

Chicago:  acquisition  of  school 
house  sites,  42;  apprecia- 
tion of  lots,  7-8;  commis- 
sion on  street  improve- 
ments, 39-40;  Randolph 
Street  taking,  29,  40;  settle- 
ments for  condemnation  in, 
42 

City  as  Trustee,  4 

City  Government:  unit  idea 
in, 186-188 

City  Ownership  of  Land: 
public  purpose,  3 

City  Planning:  administrative 
agencies   in,    168-208;    ad- 


vantages of  unit  idea,  188; 
commission  appointed,  in 
Seattle,  in  1910,  196-197; 
controversies  over  civic 
centers,  8;  councilmen  and 
wards,  186;  departments 
created  in  Pennsylvania 
and  New  Jersey,  19 11, 
190;  disregard  of  expert 
suggestions  in,  185;  func- 
tions of  conmiission  for, 
198-208;  future  improve- 
ments considered,  203-206; 
necessity  for  cor-relation  in, 
200-202;  ownership  by  mu- 
nicipality essential  to,  i; 
police  power  in,  138-167; 
politicians*  methods,  186; 
protection  needed  for,  7; 
relation  of  improvements 
to  whole  plan  in,  201-202, 
special  boards  required  for, 
183;  taste  and  economy  in, 
6;  various  methods  in,  168- 
169 

City  Purchases  of  Land: 
supreme  court  decision  on, 
54 

Civic  Center  Bonds:  sale  of,  in 
East  Denver,  77-78 

Cleveland:  city  charter,  299; 
hearings  by  jury,  in  con- 
demnation cases,  41-42; 
condemnation  procedure, 
regulated  by  state  law,  41 

Commissioners:  appointment  of 
condemnation  in  St.  Louis, 
$y,  duties  of  park,  in  Kansas 
City,  69;  duties  of  park,  in 
Indianapolis,  78-83;  report 
on  parks  in  Denver,  74 

Commissions:  on  city  plan, 
limitations  of,  cited,  200; 
mayor  as  exofficio  chair- 
man in  cities,  199;  sum- 
mary of,  in  cities,    197-198 


339 


INDEX 


Common  Law  Jury:  opinions 
concerning  findings  by,  48- 
49 

COMMXTNITY    RiGHTS:      SCOpC   of, 

in  Germany,  2 

Compensation:  legislation  for, 
18-21;  method  of  ascer- 
taining, 48;  method  of  New 
York  constitutional  amend- 
ment, 48;  ordinance  govern- 
ing in  Milwaukee,  25-26; 
commissioners'  salaries  in 
St.  Louis,  33 

Condemnation  of  Land:  act  of 
Virginia  assembly  in  1906, 
no;  advantages  of  prelim- 
inary tribunal  in,  49-50; 
advertising  expenses  in,  25; 
appeals  from  findings,  in  Mil- 
waukee, 39,  in  Minneapolis, 
45;  assessment  of  benefits 
in,  84-102;  compensation  by 
jury,  24;  compensation  for, 
in  New  York  City,  43-44; 
Connecticut  acts  of,  iio- 
III ;  constitutional  clauses 
affecting,  23;  cost  of,  in 
London,  126-133;  court 
decisions  in  Kansas  City, 
45-46;  direct  method  in 
Oregon,  30;  disadvantages 
of,  to  municipality,  104; 
English  and  continental 
systems,  reports  from,  308- 
321;  estimation  of  cost  in 
London,  130;  excess,  103- 
137,  268;  expenses  of,  in 
New  York  City,  44;  find- 
ings by  jury  in  Cleveland, 
Ohio,  41-42;  for  Denver 
parks,  75;  French  system, 
reports  from,  321-330,  333; 
in  Belgium,  331-334;  Jury 
findings  in  Pennsylvania, 
93-94;  jury  proceedings  in 
France,  120-122;  jury  ver- 
dicts in  Portland,  Oiregon, 
93;  law  in  Kansas  City,  70- 


73;  legal  expenses  of,  25; 
legislation  in  Ohio  and 
Maryland,  no;  new  act, 
in  Indianap>olis,  47;  Ohio 
laws  for,  62;  opinion  of 
Archibald  R.  Watson,  44- 
45;  parallel  of,  in  Phila- 
delphia and  Portland,  35; 
park  and  playground  prop- 
erty, 18-19;  parks  acquired 
by,  8;  payment  of  com- 
pensation, 23-31;  Pennsyl- 
vania acts  of,  in;  Penn- 
sylvania jury  findings  in, 
93;  procedure  in  Portland, 
35;  proceedings  in  Boston, 
36;  proceedings  in  San 
Francisco,  43;  protection 
cited  in  Fourteenth  Amend- 
ment, 23;  Randolph  Street, 
Chicago,  29,  40;  relation 
of  special  assessments  to 
awards  for,  92;  settlements 
for,  in  Chicago,  42;  superior 
court  cases  in  Indiana,  81; 
imcertainty  of  juiy  findings 
in,  49 

Conflagration  Risks:  height 
limitations  for  buildings, 
140-149 

Congestion  Committee:  ap- 
pointment of,  in  New  York, 
14 

Connecticut:  condemnation 
acts  of,  iio-iii;  special 
acts,  296-298 

Contract  Method:  advantages 
of,  for  land  payments,  55-56 

Copley  Square,  Boston:  re- 
stricting height  of  buildings 
on,  18,  19.  See  also  Height 
Limitations 

Correlation:  Mayor's  cabinet 
in  Kansas  City  an  experi- 
ment in,  187;  value  in  city 
planning,  200-202 


340 


INDEX 


Cost  of  Land  Acquisition: 
distribution  of,  i,  52-102 

CouNCiLMEN  AND  Wards:  as 
affecting  city  planning,  186 

Damages  in  Condemnation 
Cases:  findings  of  jury  in 
Kansas  City,  95;  hearings 
on,  in  Minneapolis,  27-28; 
jury  appeals  in  St.  Louis, 
28;  objections  to  rules  of, 
93-94 

Delaware  Park,  Buffalo:  en- 
croachments upon,  7 

Denver,  Colorado:  appraisers 
in,  32;  bonds  for  land  cost 
in,  75;  four  park  districts 
in,  73;  land  condemnation 
for  parks,  75;  municipal 
art  commissions  in,  200; 
notice  and  hearing  proceed- 
ings in,  28-29;  park  com- 
missioners' report,  74 

Denver  Park  System:  exten- 
sion of  civic  center,  32; 
findings  of  appraisers  in,  32 

Distribution  of  Cost  of  Land 
Acquirement,  i,  52-102 

District  of  Columbia:  high- 
way restrictions  in,  18 

Districts:  creation  of  park,  in 
Indianapolis,  78;  principle  of 
separating  in  Los  Angeles, 
15s 

Dwellings  :  building  regula- 
tions for,  149-150 

East  Denver  Park  District: 
appraisers'  report  on  land 
damages,  77;  ordinance  of 
condemnation  passed,  76- 
77;  report  of  park  commis- 
sioners, 76;  sale  of  "civic 
center  bonds,"  77-78;  sub- 
division of  districts,  76 


Economy:  and  good  taste  in 
planning,  6;  buildings  in 
parks  and  commons  not, 
6,7 

Edwards  vs.  Bruorton:  184 
Mass.  529,  245-246 

Eminent  Domain:  assessors  in 
Washington,  85-86.  See 
also    Condemnation 

Esthetic  Developments:  re- 
strictions for  promoting,  19- 
21 

Excess  Condemnation,  103- 
137,  268;  adaptability  of 
principles  in  United  States, 
116-117;  diflSculties  of,  in 
United  States,  133-135; 
financial  results  in  France, 
1 1 8- 1 2  2 ;  financial  value  of, 
in  United  States,  11 7-1 18; 
history  of,  in  United  States, 
106-111;  physical  value  of, 
133-135;  relief  of,  to  tax 
payers,  103-106;  substitute 
for,  in  America,  105-106. 
See  also  Condemnation 

Excess  Taking:  amendments 
for,  in  Massachusetts,  114- 
115;  amendments  for,  in 
Ohio,  114;  amendments  for, 
in  Wisconsin,  114,  116; 
causes  of  failure  in  Lon- 
don, 13 1-13  2;  constitutional 
amendments  versus  court 
decisions  in,  116;  constitu- 
tionality in  Wisconsin,  116; 
constitutionality  of ,  1 1 2 ;  con- 
stitutionality of,  doubted, 
114-116;  control  over  rem- 
nants in,  134-135;  court 
decision  against,  in  Philadel- 
phia, 112;  investigation  of, 
by  London  county  council, 
128-132;  law  for,  in  Bel- 
gium, 122-125;  New  York 
amendments  for,  114-115; 
relative  increase  of  property 


34' 


INDEX 


values,  125;  restrictions  in, 
136-137 ;  revenue  from 
remnant  sale  in  France,  1 19- 
122;  state  amendments  to, 
114-116;  supreme  court  de- 
cision on,  in  Massachusetts, 
1 1 2-1 14 

Exemptions:  from  special  as- 
sessment, in  takings  for 
parks,  61 


Field  Columbian  Museum  : 
decision  in  case  of,  10-12 

FuiE  Hazard:  increased  by  bill- 
boards, 164 

Fire  Risks:  ordinances  which 
regulate,   141-143,   148-149 

Fourteenth  Amendment:  pro- 
tection against  condemna- 
tion, 23 

France  :  condemnation  pro- 
ceedings in,  120-122;  ex- 
cess condemnation  in,  118- 
122;  remnant  appropriation, 
119;  revenue  from  sale  of 
renmants  in,  11 9-1 22 

French  Council:  remnant 
taking,  1 21-12  2 


German  Cities:  community 
rights  of,  2 

G£f&(ANY:  building  regulations 
in,  145-146;  town  planning 
and  municipal  ownership,  i 

Grant  Park:  and  Field  Mu- 
seum, 11-12 


Height  and  Size  of  Buildings: 
limitations  and  restrictions 
in,  140-150 


Height  Limitations:  absolute, 
242-243;  conflagration  risks, 
140-149;  court  decision  on, 
19;  German  versus  Ameri- 
can regulations  for,  145; 
Massachusetts  act  of  1898, 
18;  Massachusetts  court 
decision  on,  147-148;  Mas- 
sachusetts statute  for,  146- 
147;  ordinances  governing, 
140-144 

Highways:  boards  of  survey 
for,  1 71-180;  cost  to  own- 
ers, 171;  restrictions  in 
District  of  Columbia,  18 

House  of  Representatives, 
6ist  Congress,  1910,  213- 
218 

Housing  Experiments:  lend- 
ing land  for,  1 7 

Housing  Problems  :  causes 
which  contribute  to,  139- 
140 


Improvement  Costs:  tax  pay- 
ers' relief  from,  56 

Incomes:  derived  from  lease  of 
municipally  owned  land,  7 

Indiana:  acts  of,  212 

Indianapolis:  advantages  de- 
rived from  park  board,  82- 
83;  duties  of  boards  of 
public  works  and  park 
commissioners  in,  46;  four 
park  districts  created  in,  78; 
land  takings  under  new  act 
in,  47;  park  commission  in, 
37;  park  commissioners' 
duties  in,  78-83;  park  law 
of,  254-267;  real  estate 
experts  as  advisory  com- 
mittees, 82 

Indianapolis  Park  Commis- 
sion: character  of,  37 


342 


INDEX 


Industrial  Districts  :  ordi- 
nance for,  in  Los  Angeles, 
155-156 

Industrial  Occupations:  reg- 
ulations governing,  154- 
157 

Instalment  Plan:  method  of 
purchase  in  Minnesota  and 
Wisconsin,  53-55 


Jury  Decisions:   in  condemna- 
tion, 24;  land  damage,  24 

Jury  Findings:  imcertainty  of, 
in  condemnation,  49 


Kansas  City:  assessment  on 
land  benefited  in,  64;  as- 
sessments by  jury,  71-72; 
assessments  within  city 
limits,  70;  correlation  and 
Mayor's  cabinet,  187;  divi- 
sion of,  into  park  districts, 
69-73;  findings  of  jury  for 
damages  in,  95;  juries  not 
demanded  by  corporations, 
46;  70;  law  in  condem- 
nation proceedings,  70-73; 
municipal  court  on  land 
takings  in,  45-46;  park 
commissioners'  duties  in, 
69;  park  system  in,  72- 
73;  rights  of  corporations 
in,  28;  special  assessments, 
72;  Swope  Park  appropria- 
tions in,  73 

Kansas  City  vs.  Bacon  et  al.  : 
157  Mo.  450,  250-254 

King's  Highway:  assessment 
provision  for,  91;  instance 
of  excess  condemnation, 
130-131 

Koln  System:  building  reg- 
ulations, 145-149 


Land  Acquisition,  22-51;  con- 
demnation and  assessment, 
248-254;  considerations  in, 
i;  issue  of  bonds  for,  52-55; 
payment  for,  by  cities,  52- 
57;  special  assessments  for, 
83-102 

Land  Benefits:  Kansas  City 
assessments,  64 

Land  Cost:  excessive,  22,  23 

Land  Damages:  findings  by 
juries,  24;  report  on  East 
Denver,  77 

Land  Dedicated  in  Fee.  See 
under  Minnesota,  Ohio,  and 
other  states  and  cities 

Land  Encroachments:  regula- 
tions for,  150-152 

Land  for  Specific  Purposes: 
abandonment  of  original 
plan,  5 

Land  Loans:  housing  experi- 
ment, 17 

Land  Payments  :  instalment 
plan  in  Wisconsin  and  Min- 
nesota, 55 

Land  Purchase  :  Wisconsin 
and  Minnesota  method  of, 
53 

Land  Restrictions:  governing 
boulevards,  17-21 

Land  Values:  increase  in  Cen- 
tral Park,  66-67 

Legislation:  esthetic  consider- 
ations, 19;  bill-boards,  19; 
restrictions  on  use  of  land, 
211 

Legislative  Authority:  limi- 
tations of,  in  benefit  dis- 
tricts, for  special  assess- 
ments, 91 


343 


INDEX 


License:  bill-board  fees,  162- 
163 

London:  causes  of  failure  of 
excess  taking  in,  131-132; 
excess  taking  investigation 
in,  128-132;  financial  re- 
sults in,  125-133;  land- 
taking  cost  in,  126-133; 
metropolitan  board  of  works 
in,  125-133;  notable  opin- 
ions regarding  recoupment 
in  excess  taking,  129;  report 
of  county  council,  130 

London  County  Council:  pol- 
icy of,  128-132 

Los  Angeles:  council  ordi- 
nance in,  26-27;  ordinance 
for  residence  and  industrial 
districts,  155-157 

Louisiana:  state  codes  of,  af- 
fecting condemnation  pro- 
cedure, 40 


Maryland:  acts  of,  1910,  298- 
299;  laws  of  1908,  269-271 

Massachusetts:  act  governing 
height  of  buildings,  18; 
acts  of  1898,  218-219;  acts 
of  1904,  221-223;  acts  of 
1905,223-226;  acts  of  1907, 
280-282;  acts  of  191 2,  267- 
268;  acts  of  19 13,  283-284; 
assessment  committee  ap- 
pointed in  1658,  58,  60; 
assessment  of  benefit  in, 
85 ;  constitutional  amend- 
ment allowing  excess  taking 
of  land  in,  278;  height  limit- 
ation decisions,  147-148; 
laws  for  assessments  in, 
64-65 ;  limitations  on  height 
of  buildings  in,  146-147; 
practice  of  metropolitan 
park  commission,  65 ;  rem- 
nant act  in,  107-1 II ;j  revised 


laws,  213;  supreme  court 
decision  on  remnants,  112- 
114;  various  planning  com- 
missions in,  193-195 

Metropolitan  Board  of 
Works:  operations  of,  in 
London,  125-133 

Metropolitan  Improvement: 
borrowing  plan,  in  Boston, 

Metropolitan  Park  Commis- 
sion: practice  of,  in  Massa- 
chusetts, 65 

Milwaukee:  area  of  special 
benefit  in,  90;  bond  issue 
for  improvements  in,  53; 
borrowing  method,  for  im- 
provements, 53-56;  instal- 
ment plan  of  purchase,  53- 
55;.  jury  appeals  for  land 
taking  in,  39;  ordinance 
governing  compensation,  25- 
26;  street  opening,  docket 
entries  in,  26 

Minneapolis:  special  assess- 
ments for  parks  in,  68-69; 
findings  in  street  cases  in, 
94;  instalment  plan  of  pur- 
chase, 53-55;  park  commis- 
sioners on  damages  in,  27- 
28;  percentage  of  appeals 
for  land  takings  in,  45 

Minnesota:  land  dedicated  in 
fee,  10 

Missouri:  boulevards  and  in- 
dustries, 158-160 

Mistakes  of  Cities:  sacrificing 
city  owned  real  estate,  6 

Municipal  Art  Commissions: 
in  Greater  New  York,  184; 
powers  of  commission,  for 
Denver,  200.  See  also  Art 
Jury;  City  Planning 


344 


INDEX 


Municipal  Board:  factor  in 
real  estate  market,  3 

Municipal  Investments:  finan- 
cial policy  of,  56 

Municipality:  public  revenue 
used  for,  3 

Municipal  Ownership:  in 
Germany,  1-2;  limitations 
in  United  States,  i 

Municipal  Regulations:  in- 
dustrial districts  restricted 
by,  158-160 

Municipal  Waste:  prevention 
of,  by  finance  commissions, 
17 


New  Jersey:  city  planning  de- 
partment created  in  191 1, 
190;  laws  of,  1913,  294-296 

New  York:  acts  of  191 1,  249- 
250;  assessment  law  of 
1 69 1,  58;  building  regula- 
tions decisions,  142;  con- 
gestion committee,  14;  cost 
of  school  house  sites,  16; 
court  decisions  on  adver- 
tising signs,  151-152;  laws 
of  19 13,  284-290;  nature  of 
amendment  for  excess  tak- 
ing in,  115;  planning  com- 
missions appointed  in  19 13, 
190-191;  proposed  amend- 
ment to  constitution,  279; 
provisions  of  amendment 
for  excess  taking,  114-115; 
regulation  of  assessing 
boards    needed,    90 

New  York  City:  appointment 
of  commissioners  for  land 
taking,  43-44;  land  taking 
expenses,  44;  legislation  of 
191 1  for  park  land  in,  68; 
policy  of  assessment  boards 
prior  to  1902,  87-88;  school 


house  sites,  15,  16;  simple 
method  of  ascertaining  com- 
pensation by,  48;  special 
assessment  collection  in,  96 

New  York,  Greater:  art  com- 
mission, 184;  decision  pro- 
viding for  assessment  of 
parks  in,  67-68;  topograph- 
ical bureau  in,  180-181 

Notice  and  Hearing:  delays 
of,  in  Denver,  Colorado,  28- 
29;  proceedings  in  Denver, 
28-29;  property  owners' 
rights,  25 

Nuisances:  boards  of  health 
and,  154-155;  district  reg- 
ulations for,  154-157;  mu- 
nicipal regulations  for,  152- 
165;  regulation  for  bill- 
boards, 164 


Ohio:  acts  of  1904,  268;  amend- 
ments for  excess  taking  in, 
114;  amendment  to  con- 
stitution, 280;  condemna- 
tion laws  of  cities  in,  62; 
land  dedicated  in  fee,  10; 
legislation  for  condemna- 
tion, no 

Oregon  State  Code:  con- 
denmation  proceedings,  30; 
determination  of  damages, 
30 

Ownership  of  Land:  public,  i- 
21 


Park  Boards:  duties  of,  in 
Indianapolis,  46 

Park  Commission:  in  Indian- 
apolis, 37 

Park  Districts:  in  Denver,  73; 
local  tax  on,  61;  treated  as 
separate  entities,  69 


345 


INDEX 


Park  Purposes:  use  of  land  for, 
cited,  8-12 


Parks:  acquired  by  condem- 
nation, 8;  acquiring  titles 
in  Greater  New  York,  67; 
appreciation  of  contiguous 
property,  61;  assessments 
in  acquiring  land  for,  60; 
cost  of  Central,  65;  district 
subdivision  in  East  Denver, 
76;  districts  in  Kansas  City, 
69-73;  Indianapolis  law, 
254-267;  land  dedicated  in 
fee,  10;  legislation  in  New 
York  City,  68;  Minneapolis 
assessments  for,  68;  pro- 
hibition of  bill-boards  near, 
162;  property  exempt  from 
tax  in  United  States,  61; 
separate  districts  as  entities, 
69;  sign  disfigurement  of, 
151-152;  system  in  Kansas 
City,  72-73 

Parks  and  Boulevards:  state 
decisions,  on  objectionable 
occupations  near,  166 

Parks  and  Playgrounds:  con- 
demnation of  private  prop- 
erty for,  18-19;  reservation 
of,  for  city  needs,  205 

Park  Boards:  advantages  of, 
in  Indianapolis,  82-83 

Pennsylvania:  acts  of,  1907, 
272-275;  assessment  law  of , 
1700,  58-59;  city  planning 
department  created  in  191 1, 
190;  condemnation  acts  of, 
in;  condemnation  by  jury, 
93;  decisions  on  street 
planning,  174-175;  findings 
of  jury  in  condemnation 
cases  in,  93-94;  laws  of 
1913,  290-294,  300-307; 
Mutual  Life  Insurance 
Company  vs.  Philadelphia, 
275-278;    plan    commission 


created  in  19 13,  193;  road 
juries  appointed  in,  s3j  34> 
35;  statutes  for  street  plan- 
ning, 174 

PfflLADELPHiA:  area  of  special 
benefit  in,  90;  bureau  of 
surveys,  176-177;  city  hall 
in  public  square,  7;  deci- 
sions on  excess  taking,  112; 
land-taking  procedure  in,  35; 
scope  of  art  jury,  184-185; 
street  widening  in,  176 

PmLADELPHIA      ROAD      JURIES: 

appeals  from  awards  by,  34- 
35 

Physical  Changes:  purposes 
unsuited,  5;  uses  of  land 
outgrown,  5 

Pittsburgh:  markets  in  public 
square,  7 

Planning:  agencies  created, 
280-282 

Planning  Commissions:  ap- 
pointment of,  in  New  York 
in  1913,  190-191;  appoint- 
ment of,  in  unit  idea,  190; 
creation  of,  in  1913,  in 
Pennsylvania,  193;  history 
of,  190-198;  opportunities 
of,  202-208 

Police  Power,  138-167;  build- 
ing limitations,  140-149; 
regulations  for  nuisances, 
152-165 

Politicians:  methods  in  city 
planning,  186 

Portland:  jury  verdict  for 
condemnation  in,  93;  land- 
taking  procedure  in,  35 

Preliminary  Tribunal:  ser- 
vices of,  in  condemnation 
proceedings,  49~So 


346 


INDEX 


Private  Owners:  power  lim- 
ited by  municipal  regula- 
tion, i;  rights  in  notice 
and  hearing,  25 

Private  Property:  control  of, 
for  public,  19 

Prospect  Park:  assessment  on 
land  benefited  by,  65-66; 
case  cited,  9;  ratio  of  in- 
crease in  value  of  assessed 
area  of,  66;  special  assess- 
ment district  in,  66 

Public  Control:  private  prop- 
erty under,  19 

Public  Highway:  regulations 
to  prevent  encroachment 
on,  150-152 

Public  Lands:  new  use  for,  7 

Public  Ownership:  of  land,  i- 
21 

Public  Revenue:  used  by  mu- 
nicipality, 3 

Pueblo  Lands:  inheritance  of, 
in  California,  16 

Purchase  of  Land:  economy 
in,  by  cities,  14,  17 


Randolph  Street,  Chicago: 
finding  of  commissioners  for 
land  taking,  40;  widening 
of,  29 

Real  Estate:  instances  of 
appreciation  in  Chicago, 
7-8;  sacrifice  of,  through 
error,  6 

Recreational  Needs:  commu- 
nity money  appropriated,  2 

Recoupment:  opinions  of  Lon- 
doners regarding,  129 


Remnant  Act:  draft  of  bill 
in  Massachusetts,  107-110; 
principles  of,  107-111; 
supreme  court  decision  in 
Massachusetts,    112-114 

Remnants:  appropriation  of, 
in  foreign  countries,  107; 
appropriation  of,  in  France, 
119;  control  in  excess  tak- 
ing, 134-135;  disposition 
of,  104-106;  Massachusetts 
act  for,  in;  near  Williams- 
burg Bridge,  104;  policy  of 
French  council,  1 21-122; 
results  of  street  changes, 
103,  104;  revenue  from  sale 
of,  in  France,  119-122; 
unsightliness  of,  104-105; 
unsuitable,  in  Boston,  104 

Residentlal  Districts:  ordi- 
nances for,  155-157 

Restrictions:  building  lines, 
211;  esthetics  promoted 
by,  19-21 

Road  Juries:  appointment  in 
Philadelphia,  33,  34,  35 

Rules  of  Damage:  objections 
to,  93-94 


San  Francisco:  condemnation 
proceedings  in,  43 

School  House  Sites:  acquired 
by  condemnation,  in  Chi- 
cago, 42;  minimum  price  in 
New  York,  16,  purchase  of, 
by  New  York  City,  15,  16 

Seattle:  city  planning  com- 
mission appointed  in  1910, 
196-197 

Special  Assessments:  Boston 
an  exception  to  rule  of,  96; 
comparison  of  returns  from, 
98-99;     definition    of,    56- 


347 


INDEX 


57;  difference  of,  from  tax, 
57;  efficiency  of ,  in  different 
communities,  95;  former 
practice  in  Boston,  89; 
history  of,  87-90;  ineffect- 
iveness in  Boston,  reasons 
for,  97;  in  Kansas  City,  72; 
limit  of,  in  some  states,  84; 
process  of  collection  of,  in 
New  York  City,  96;  reg- 
ulation of,  in  different 
states,  83-102;  tables  show- 
ing returns  from,  99-101; 
testing  of,  an  advantage, 
101-102 

Special  Assessments  and 
Awards:  relation  of,  for 
land  takings,  92 

Special  Benefit:  area  of,  in 
Boston,  90,  in  Milwaukee, 
90,  in  Philadelphia,  90,  in 
St.  Louis,  90-91;  assessing 
board  to  determine  area, 
90-91;  assessments  for,  84- 
102 

Special  Tribunals:  provision 
for,  in  cities,  31-32 

St.  Louis,  Missouri:  appoint- 
ment of  commissioners  in, 
33;  area  of  special  benefit 
in,  90-91;  boulevard  law 
and  King's  Highway  in, 
90-91;  city  charter,  211; 
city  hall  in  pubUc  square,  7; 
conmiission'scompensations, 
33;  commissioners'  time  in 
reaching  decisions,  33;  dam- 
age appeals  by  jury,  28; 
ordinance  for  bill-boards, 
165 

State  Legislation:  governing 
assessments,  59-60 


State  Regulation:   on  special 
assessments,  83-102 


Street  Commissioners:  awards 
of,  in  Boston,  36-38 

Street  Planning:  bureaus  for, 
173-180;  bureaus  for,  in 
Greater  New  York,  180- 
181;  community  benefits 
of,  169;  control  of,  in  cities, 
169-183;  court  decisions  on, 
in  Pennsylvania,  174-175; 
limitations  of,  in  cities,  182; 
Pennsylvania  statutes  for, 
174;  width  in  cities,  173- 
176 

Streets:  assessments  and  ex- 
penses for  opening,  87-88; 
assessments  for  widening 
in  New  York  City,  87-88; 
building  line  in,  204;  Chi- 
cago commission  on  im- 
provements, 39-40;  entries 
for  opening  in  Milwaukee, 
26;  lack  of  co-operation 
of  departments  of,  201; 
Minneapolis  findings  in,  94; 
one-way,  in  Boston,  204; 
proceedings  for  improve- 
ments in  Boston,  37-38; 
renmants  from  change  in, 
103-104;  system  in  Belgium, 
122-125;  widening  of,  in 
Philadelphia,  176;  widen- 
ing of,  in  business  districts, 
204-205 

Streets  and  Parks:  land  tak- 
ing for,  in  New  York  City, 
43-44 

Superior  Court:  last  resort  in 
condemnation  cases  in  Indi- 
ana, 81 

Supreme  Court:  height  limi- 
tations, 141-145 

Survey  Boards,  280-282;  ap- 
pointed in  Boston  in  1891, 
89,  177-179;  supervision  of, 
on  highways,  1 71-180 


348 


Survey  Bureau: 
phia,  176-177 


INDEX 

in  Philadel- 


SuRVEY  Commission:    work  of, 
in  Baltimore,  182 

Survey    Lines:     in    Brooklyn, 
243-246 

SwoPE    Park,    Kansas    City: 
appropriation  for,  73 


Tax  Payers:  excess  condem- 
nation relief,  103-106;  land 
cost  a  burden  to,  22 

Topographical  Bureau:  in 
Greater  New  York,  i8o-i8i 

Topographical  Survey:  Balti- 
more commission,  182 

Town  Planning:  German  ex- 
amples of,  I 

Trial  by  Jury:  in  condemnation 
cases,  24 

Trust  Estates:  administered 
by  cities,  4;  city  as  trustee, 
4;  creation  of,  4 


Underground    Wires:     muni- 
cipal regulation  for,  152 


Unit  Idea:  city  planning  advan- 
tages, 188;  in  city  govern- 
ment, 186-188;  planning 
commissions  appointed,  190 

Virginia:  acts  of  assembly  in 
1906,  271;  condemnation,  in 
1906  assembly,  no 

Washington,  D.  C:  building 
regulations  in,  142 

Washington:  eminent  domain 
assessors  in,  85-86;  state 
codes  of,  50 

Watson,  Archibald  R.  :  opinion 
of,  on  condemnation  mat- 
ters, 44-45 

Welch,  Trustee,  vs.  Swasey, 
etal.,  1908,  234-242 

Welch  vs.  Swasey:  193  Mass. 
364,  226-234 

Williamsburg  Bridge:  rem- 
nants near,  104 

Wisconsin:  amendments  for 
excess  taking  in,  114,  116; 
amendment  to  constitution, 
279 

Worcester,  Massachusetts: 
city  hall  in  common,  6-7 


349 


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